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That Xiong v. State of California

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


October 4, 2012

THAT XIONG, PETITIONER,
v.
STATE OF CALIFORNIA, ET AL., RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se. In February 2012, petitioner filed a motion to stay and hold in abeyance this habeas action. (See Dkt. No. 1.) On March 1, 2012, the court denied the motion for stay and abeyance without prejudice because petitioner had not filed a petition for writ of habeas corpus or any other pleadings with the court. (See Dkt. No. 4.) Petitioner was given thirty days to file a habeas petition and an in forma pauperis application or the requisite filing fee. Petitioner having failed to do so within the requisite thirty day time period, the action was dismissed without prejudice on April 11, 2012.

On May 29, 2012, petitioner filed a motion to appoint counsel on appeal.*fn1

Because petitioner does not currently have an appeal pending, the motion to appoint counsel will be denied. Furthermore, 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, petitioner is advised that documents filed by plaintiff since the closing date will be disregarded and no orders will issue in response to future filings.

Accordingly, IT IS HEREBY ORDERED that petitioner's motion to appoint counsel on appeal (Dkt. No. 7.) is DENIED.


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