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Stephen Earl Scally v. J. Thoma

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


March 7, 2012

STEPHEN EARL SCALLY, PETITIONER,
v.
J. THOMA, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

"A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Petitioner has named J. Thoma as the respondent in this action. J. Thoma, however, is not the proper respondent. Accordingly, the court will grant petitioner thirty days leave to file an amended petition naming the proper respondent. Petitioner is advised that the proper respondent in the usual habeas action is the warden of the institution where the petitioner is currently incarcerated. See Stanley, 21 F.3d at 360.

Also pending before the court is petitioner's motion for 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.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's motion to proceed in forma pauperis (Doc. No. 13) is granted;

2. Petitioner shall file an amended petition within thirty days of the date of service of this order;

3 Any amended petition must be filed on the form employed by this court, must name the proper respondent, and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition";

4. The Clerk of the Court is directed to send petitioner the form for habeas corpus application; and

5. Petitioner's motion for appointment of counsel (Doc. No. 14) is denied.

20120307

© 1992-2012 VersusLaw Inc.



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