IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 18, 2011
JOHNNY C. THOMAS, PETITIONER,
GARY SWARTHOUT, RESPONDENT.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 15, 2011, the court ordered that the petition be served on respondent and that respondent file an answer or other response within sixty days. On April 28, 2011, petitioner filed a motion to amend his petition, along with the first amended petition. Because petitioner has complied with all requirements of Fed.R.Civ.P. 15 and the local rules governing the amendment of pleadings, the motion to amend the petition will be granted. Respondent will have sixty days from the entry of this order in which to file a response to the petition.
Petitioner has requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel at the present time.
Accordingly, IT IS HEREBY ORDERED that:
1. The motion to amend the petition (Docket No. 10) is granted. The first amended petition is deemed filed as of April 28, 2011.
2. Respondent has sixty days from the entry of this order in which to respond to the first amended petition.
3. Petitioner's May 2, 2011, and May 11, 2011, requests for appointment of counsel are denied without prejudice to a renewal of the motion at a later stage of the proceedings.
4. The Clerk of the Court shall serve a copy of this order on Michael Patrick Farrell, Senior Assistant Attorney General.
© 1992-2011 VersusLaw Inc.