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Phillip Mendoza v. G. Swarthout

October 22, 2012

PHILLIP MENDOZA, PETITIONER,
v.
G. SWARTHOUT, WARDEN, 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. On September 26, 2012, relief was denied as to petitioner's first claim and his second claim was dismissed without prejudice to any relief that might be available to him as a member of the class in Gilman v. Fisher, No. 2:05-cv-0830 LKK GGH P. Order filed Sept. 26, 2012 (Doc. No. 14), at 2. In that same order the assigned District Judge declined to issue a certificate of appealability. Id. Judgment was entered on the same day.

On October 10, 2012, petitioner filed a notice of appeal and a motion for appointment of counsel on appeal. 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, this court does not find that the interests of justice would be served by the appointment of counsel at this time.

Accordingly, IT IS HEREBY ORDERED that petitioner's October 10, 2012 motion for appointment of counsel (Doc. No. 17) is denied without prejudice.

20121022

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