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Reginald Whitfield v. Gary Swarthout

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


April 19, 2012

REGINALD WHITFIELD, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. On March 21, 2012, claims two, three and four were dismissed for failure to exhaust state court remedies and respondent was directed to file a response to claim one. Petitioner now requests a stay so that he may exhaust state court remedies as to new claims. Respondent opposes a stay. The court has discretion to stay a habeas a petition to allow the petitioner to exhaust state court remedies with respect to additional claims. See e.g. Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

As suggested in the court's January 5, 2012 findings an recommendations, claims two, three and four are "vague, rambling and confusing." Plaintiff acknowledges this in his motion for a stay and proposes that he redraft his claims and resubmit them to California's courts. However, plaintiff does not provide the court with a description of the claims he plans to submit. Without understanding the claims, the court cannot find that a stay is warranted. For these reasons, petitioner's request for a stay will be denied.

In his request for a stay, petitioner requests 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.

Finally, respondent requests an extension of time to file his answer. Good cause appearing, that request will be granted.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's March 5, 2012 request for a stay is denied.

2. Petitioner's request for appointment of counsel is denied.

3. Respondent's request for an extension of time is granted.

4. Respondent's answer shall be filed within 21 days.

20120419

© 1992-2012 VersusLaw Inc.



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