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Gregory Summers v. Warden Rackley

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


October 18, 2012

GREGORY SUMMERS, PETITIONER,
v.
WARDEN RACKLEY, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order filed September 6, 2012, the Clerk of the Court was directed to file a copy of a document filed July 12, 2012 in Case No. 2:12-cv-2261 CKD P in this action. The document was docketed in this action as a first amended petition for writ of habeas corpus. Review of the document shows that it is a motion for evidentiary hearing. Good cause appearing, respondent will be directed to respond.

On September 6, 2012, petitioner filed a 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. Petitioner's motion for appointment of counsel will be denied without prejudice.

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

1. The Clerk of the Court is directed to docket the document filed in this action on July 12, 2012 (Docket No. 26) as a motion for evidentiary hearing;

2. Within twenty-one days from the date of this order respondent shall file and serve a response to petitioner's July 12, 2012 motion for evidentiary hearing;

3. Petitioner's reply, if any, shall be filed and served not later than fourteen days thereafter; and

4. Petitioner's September 6, 2012 motion for appointment of counsel (Docket No. 29) is denied without prejudice.

20121018

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