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Dock Mcneely v. Kevin Chappell

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


November 14, 2012

DOCK MCNEELY, PETITIONER,
v.
KEVIN CHAPPELL, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He has requested that the court appoint 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). The court may appoint counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing § 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings. Accordingly, the request is denied.

Petitioner also requests an evidentiary hearing. The court has not yet reviewed petitioner's claims in detail. Indeed, respondent has until December 18, 2012, to file a response to petitioner's application for a writ of habeas corpus. Following a detailed review of the pleadings and records submitted in this action, the court sua sponte will order an evidentiary hearing if it appears necessary. The court therefore denies petitioner's request for an evidentiary hearing without prejudice.

Petitioner further requests that this court issue an order requiring him to be re-prosecuted for the crimes for which he was convicted and releasing him from custody pending trial. Petitioner essentially requests the relief sought in his petition. As already explained, the court has not yet had an opportunity to conduct a detailed review of petitioner's claims. Upon submission and review of the record in this case, the court will determine what relief, if any, petitioner is entitled to.

Accordingly, it hereby is ORDERED that:

1. Petitioner's request for appointment of counsel and request for an order to be retried and released from prison, Dckt. No. 12, are denied without prejudice; and

2. Petitioner's motion for an evidentiary hearing, Dckt. No. 13, is denied without prejudice.

20121114

© 1992-2012 VersusLaw Inc.



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