Opinion
No. 2:10-cv-3348 KJM DAD P
03-19-2013
STEPHEN EARL SCALLY, Petitioner, v. LINDA PERSONS, Respondent.
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On December 6, 2012, petitioner filed a motion with this court seeking a protective order. Petitioner's motion, however, is difficult to decipher. Therein, petitioner appears to complain about an official at Atascadero Hospital giving him legal mail from this court in an already-opened envelope. Insofar as the court understands this as the nature of petitioner's complaint, the court advises him that incoming mail from the court, as opposed to mail from an inmate's attorney, is not considered "legal mail" and may therefore be opened outside of an inmate's presence. See Keenan v. Hall, 83 F.3d 1093, 1094 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). Accordingly, the court will deny petitioner's motion for a protective order.
More recently, petitioner filed a motion for appointment of counsel. As the court previously advised petitioner, 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, the court does not find that the interests of justice would be served by the appointment of counsel at the present time.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's motion for a protective order (Doc. No. 33) is denied; and
2. Petitioner's motion for appointment of counsel (Doc. No. 43) is denied.
_____________________
DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE