IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 18, 2011
MICHAEL MARTEL, AS ACTING WARDEN OF
CALIFORNIA STATE PRISON AT SAN QUENTIN,
The opinion of the court was delivered by: Anthony W. Ishii United States District Judge
DEATH PENALTY CASE
ORDER GRANTING APPLICATION FOR APPOINTMENT OF COUNSEL AND APPLICATION TO PROCEED IN FORMA PAUPERIS; DENYING WITHOUT PREJUDICE REQUEST FOR STAY OF EXECUTION
On August 16, 2011, Petitioner Clifton Perry ("Perry") a state prisoner facing capital punishment, commenced this action pursuant to 28 U.S.C. § 2254 by filing an application for appointment of counsel and request for a stay of execution. In Perry's declaration, appended to this application, he includes a statement of his indigence, a Certificate of Funds over the signature of a prison official, and a certified Inmate Statement Report from the prison stating the amount on deposit in his prison account. A separate application for Perry to proceed in forma pauperis also was filed on August 16, 2011 and corrected on August 17, 2011, over the signature of Assistant Federal Defender Joseph Schlesinger. The forma pauperis application is supported by Perry's declaration appended to the request for stay and appointment of counsel.
I. Request for Appointment of Counsel
Section 3599(a)(2) of Title 18 of the United States Code provides for the appointment of one of more attorneys to represent an indigent person proceeding under 28 U.S.C. § 2254 to vacate a death sentence. Rule 191(c) of the Local Rules of the United States District Court for the Eastern District of California also provides for the appointment of counsel for indigent capital habeas petitioners. Under this rule, selection of counsel is made from a panel of attorneys qualified for appointment in death penalty cases and certified by a selection board appointed by the Chief Judge. Based on the Perry's submissions, he is entitled to appointment of counsel under 18 U.S.C. § 3599(a)(2).
II. Application for Leave to Proceed in Forma Pauperis
Rule 3(a) of the Rules Governing § 2254 Cases in the United States District Courts provides that a petitioner seeking in forma pauperis status shall file an affidavit of assets as required by 28 U.S.C. § 1915. Rule 3(a) also requires a certificate from the prison stating the amount on deposit in the petitioner's accounts. Perry's declaration, Certificate of Funds over the signature of a prison official, and certified Inmate Statement Report appended to his request for a stay of execution and appointment of counsel satisfy these requirements.
III. Request for Stay of Execution
Local Rule 191(g)(1) provides that when an indigent, condemned habeas petitioner submits an application for appointment of counsel and a temporary stay of execution, the Court may issue a temporary stay of execution for a period of 90 days, while counsel is located. Perry has presented no facts or circumstances to warrant the exercise of discretion to issue a temporary stay of execution in this case.
Good cause appearing therefor, 1. Perry's application for appointment of counsel is granted. The matter is referred to the Selection Board for the Eastern District of California to certify an attorney or attorneys qualified and available to represent Danks before this Court.
2. Perry's application to proceed in forma pauperis is granted.
3.. Perry's application for a temporary stay of execution is denied without prejudice. IT IS SO ORDERED
Anthony W. Ishii
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