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Paula R. Moyer v. Walter Miller

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


May 15, 2012

PAULA R. MOYER, PETITIONER,
v.
WALTER MILLER, WARDEN, RESPONDENT.

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

ORDER

Petitioner, a state prisoner proceeding without counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis, and a request for appointment of counsel. These matters were recently transferred to this court from the United States District Court for the Northern District of California.

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

Because petitioner may be entitled to the requested relief if the claimed violation of constitutional rights is proved, respondents will be served with the petition, but shall not file a response at the present time.

In support of her request for appointment of counsel, petitioner has submitted a sworn, but undated, declaration, in which she states that her state appellate counsel assisted in the preparation of the instant federal habeas corpus petition, but that petitioner feels unable to substantively respond to any response that may be filed by the state Attorney General. Petitioner asserts that her request for appointment of counsel warrants heightened review because she is serving a sentence of life imprisonment without the possibility of parole (confirmed pursuant to the court's review of the underlying state Court of Appeal decision, People v. Ray, 2011 WL 3930322 (Cal. App. 1st Dist., Sept. 08, 2011)), and because her claims are allegedly meritorious.

In light of the length of petitioner's sentence, the court finds that the interests of justice require appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's request to proceed in forma pauperis (Dkt. No. 2) is granted;

2. Petitioner's request for appointment of counsel (Dkt. No. 3) is granted;

3. The Federal Defender is appointed to represent petitioner;

4. Within thirty days after the filing date of this order, the parties shall file a joint scheduling statement which addresses the timing and order of the following matters:

a. The number of days petitioner's counsel estimates it will take to file:

1. A statement indicating whether petitioner will stand on the existing petition and exhibits; OR

2. An amended petition that will proceed on exhausted claims only; OR

3. An amended petition that identifies both exhausted and unexhausted claims; demonstrates good cause for petitioner's failure to previously exhaust her unexhausted claims, see Rhines v. Weber, 544 U.S. 269 (2005); and requests that the court stay and abey these proceedings pending petitioner's exhaustion, in the state courts, of her currently unexhausted claims.

b. Anticipated discovery and investigations;

c. Anticipated motions;

d. Anticipated need for, and timing, of an evidentiary hearing; and

e. Possible future amendments to the pleadings.

5. Counsel are reminded of the importance of timely filing a joint scheduling statement. Failure to do so may result in sanctions.

6. The Clerk of the Court is directed to serve, on both David Porter, Assistant Federal Defender, AND Michael Patrick Farrell, Senior Assistant Attorney General, the following: (1) a copy of this order; (2) a copy of the underlying petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and exhibits thereto (Dkt. No. 1); and (3) a copy of the consent/ reassignment form contemplated by Appendix A(k) to the Local Rules.

SO ORDERED.

20120515

© 1992-2012 VersusLaw Inc.



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