(HC) Elliott v. Yates

2:09-cv-02199 | E.D. Cal. | Aug 18, 2009

Case 2:09-cv-02199-TJH Document 5 Filed 08/18/09 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DAVID A. ELLIOTT, Petitioner, No. CIV S-09-2199 GGH P vs. JAMES A. YATES, et al., Respondents. ORDER / Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner’s habeas petition. Petitioner has requested the 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

Case 2:09-cv-02199-TJH Document 5 Filed 08/18/09 Page 2 of 2 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.
In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner’s application to proceed in forma pauperis (no. 2) is granted; 2. Respondents are directed to file a response to petitioner’s habeas petition
within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases;
3. If the response to the habeas petition is an answer, petitioner’s reply, if any, shall be filed and served within thirty days after service of the answer; 4. If the response to the habeas petition is a motion, petitioner’s opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents’ reply, if any, shall be filed and served within fifteen days thereafter;
5. The Clerk of the Court shall serve a copy of this order, the consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General;
6. Petitioner’s motion for the appointment of counsel (no.3) is denied. DATED: August 18, 2009 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE ell2199.100