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Marc Sardella-Lagomarsino v. Gary Swarthout

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


April 23, 2012

MARC SARDELLA-LAGOMARSINO, PETITIONER,
v.
GARY SWARTHOUT, WARDEN, ET AL., RESPONDENTS.

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

California Eastern District Federal District Court

ORDER

Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a 2010 decision of the Board of Parole Hearings denying petitioner parole. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Therefore, petitioner will be provided the opportunity to submit either the appropriate affidavit in support of a request to proceed in forma pauperis, or the appropriate filing fee.

In addition, petitioner requests the appointment of counsel, particularly for the purpose of engaging in discovery or assisting with an evidentiary hearing. 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). While 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of a habeas case "if the interests of justice so require," see Rule 8(c), Federal Rules Governing Section 2254 Cases, the court finds, at this early stage, no basis to conclude 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 shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis, or the appropriate filing fee ($5.00); petitioner's failure to comply with this order will result in the dismissal of this action;

2. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form used by this district; and

3. Petitioner's April 5, 2012 motion for appointment of counsel (Dkt. No. 2), is denied without prejudice to a renewal of the motion at a later stage of the proceedings.

20120423

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