Opinion
No. 2:15-cv-2037 AC P
06-22-2016
BOYDD D.J. IRVING, Petitioner, v. DAVE DAVEY, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court are petitioner's motions for appointment of counsel (ECF No. 15) and for an extension of time to file an amended petition (ECF No. 16).
Petitioner has requested the appointment of counsel. ECF No. 15. 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. Petitioner has not yet stated any grounds for relief and is being given an opportunity to amend the petition to correct this omission. Moreover, petitioner cites delays in his ability to access his legal property and obtain legal forms as the basis for the request for counsel. These issues can be adequately addressed by granting petitioner's request for extension of time to file an amended petition. At this early stage, the court does not find that the interests of justice would be served by the appointment of counsel at the present time.
Petitioner has also requested a second, unspecified extension of his time to file an amended petition. ECF No. 16. Petitioner cites delays in his ability to access his legal property after being transferred to a different prison. Id. The court will grant petitioner an additional thirty days to file an amended petition. Any further requests for extension should identify how much time petitioner is seeking and why the requested amount of time is necessary.
Finally, in his motion for extension of time, petitioner verifies that he is seeking to pursue relief for two separate judgments of conviction. Id. at 1. The relationship between the two judgments is not clear. Petitioner is cautioned that separate criminal convictions must in most cases be challenged in separate habeas corpus proceedings.
Petitioner is also reminded that he has already pursued a federal habeas petition related to Sacramento Superior Court Case No. 01F04127, see Irving v. People of the State of California, No. 2:05-cv-01621 LKK CMK, and that a second or successive application for habeas relief may not be filed in district court without prior authorization by the court of appeals, Felker v. Turpin, 518 U.S. 651, 657 (1996). "A habeas petition is second or successive only if it raises claims that were or could have been adjudicated on the merits." McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)). In other words, if the grounds for relief related to Sacramento Superior Court Case No. 01F04127 were or could have been addressed by petitioner's previous federal habeas petition, he cannot pursue them in this case unless he gets permission from the Ninth Circuit.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's request for appointment of counsel (ECF No. 15) is denied without prejudice to a renewal of the motion at a later stage of the proceedings. //// //// //// ////
2. Petitioner's second request for an extension of time to file an amended petition (ECF No. 16) is granted and petitioner shall have thirty days from service of this order to file an amended petition. DATED: June 22, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE