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Valdez v. Muniz

United States District Court, E.D. California

July 13, 2017

JOE DOMINGUEZ VALDEZ, Petitioner,
v.
W.L. MUNIZ, Respondent.

         ORDER VACATING FINDINGS AND RECOMMENDATION (ECF NO. 9) ORDER DENYING AS MOOT MOTION TO AMEND (ECF NO. 11) ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL (ECF NOS. 2, 12) FINDINGS AND RECOMMENDATIONS TO GRANT PETITIONER'S MOTIONS TO STAY (ECF NOS. 3, 13) FOURTEEN (14) DAY OBJECTION DEADLINE

          MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. He initiated this action on March 3, 2017 and, on the same date, filed a motion for the appointment of counsel (ECF No. 2), and a motion to stay the petition. (ECF No. 3.)

         On April 17, 2017, the undersigned issued findings and recommendations to deny both motions. (ECF No. 9.) With regard to the motion to stay, the undersigned noted:

Petitioner has asked to stay this case and hold it in abeyance to allow him to attempt to exhaust new claims. These claims have not been described, have yet to be presented to the state court for review, and are not yet included in his federal habeas petition.

(ECF No. 9 at 4.)

         Petitioner responded to the findings and recommendations with several filings. On May 1, 2017, he filed objections to the findings and recommendations. (ECF No. 10.) On May 8, 2017, he filed a motion to amend the petition. (ECF No. 11.) On May 25, 2017, he filed a renewed motion to appoint counsel (ECF No. 12) and a renewed motion to stay (ECF No. 13). Also on May 25, 2017, he filed a first amended petition. (ECF No. 14.)

         Based on the arguments and claims presented in Petitioner's objections, renewed motion to stay, and first amended petition, the Court will vacate its prior findings and recommendation.

         I. Motion to Amend

         Habeas petitions “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Under Federal Rule of Civil Procedure 15(a)(1), “[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”

         Here, the petition has not been served on Respondent and no responsive pleading or motion has been filed. Petitioner does not require leave of court to amend. His first amended petition has been filed. The motion to amend therefore will be denied as moot.

         II. Renewed Motion for Appointment of Counsel

         Petitioner has requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See, e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir. 1984). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of counsel at any stage of the case if "the interests of justice so require." See Rule 8(c), Rules Governing Section 2254 Cases. The Court finds that the interests of justice do not require the appointment of counsel in this case at the present time.

         Accordingly, the Court will deny Petitioner's requests for appointment of counsel.

         III. Renewed Motion to Stay

         A. ...


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