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Paul Samuel Johnson v. Gary Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 19, 2011

PAUL SAMUEL JOHNSON, PETITIONER,
v.
GARY SWARTHOUT, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner has filed a second request for 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.

On December 12, 2011, petitioner filed objections to findings and recommendations he claims Magistrate Judge Carolyn K. Delaney issued, and a notice regarding in forma pauperis status, claiming his writ was denied for not paying the $5.00 filing fee. Both of these filings contained the instant case number. However, at the present time, petitioner has three different habeas petitions pending in this court: Johnson v. Swarthout, 2:11-cv-2715 CKD (challenging prison disciplinary); Johnson v. People of the State of CA, 2:11-cv-2719 CKD (challenging prison sentence); and Johnson v. Swarthout, 2:11-cv-2733 KJN (challenging April 2, 2009 prison disciplinary).*fn1 Review of these cases reflects that none of petitioner's writs have been denied, and Judge Delaney has not issued findings and recommendations in either of petitioner's cases. Id. Moreover, petitioner has been granted leave to proceed in forma pauperis in all three actions, so petitioner is not required to submit further filings concerning the payment of a filing fee or an application to proceed in forma pauperis in any of his habeas cases. All three of petitioner's habeas actions are presently pending. Thus, petitioner's December 12, 2011 filings are disregarded. Petitioner is cautioned that in the future he should take care to note the proper case number on filings submitted to the court.

Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's October 17, 2011 request for appointment of counsel (dkt. no. 12) is denied without prejudice; and

2. Petitioner's December 12, 2011 filings (dkt. nos. 13 & 14) are disregarded.

john2733.110b


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