Opinion
No. 2:17-CV-0457-CMK-P
05-24-2017
ALEX LEONARD AZEVEDO, Petitioner, v. COLUSA COUNTY, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner seeks leave to proceed in forma pauperis (Doc. 4). Petitioner has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that petitioner is unable to prepay fees and costs or give security therefor. The request will be granted.
Pending before the court is petitioner's petition (Doc. 1). "A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); see also Rule 2(a), Federal Rules Governing Section 2254 Cases. Because petitioner has not named the appropriate state officer, petitioner will be provided leave to amend to correct this technical defect by naming the correct respondent. See Stanley, 21 F.3d at 360. Petitioner is warned that failure to comply with this order may result in the dismissal of this action. See Local Rule 110.
Petitioner has filed a document entitled "Summons Motion," in which he appears to seek an order directing service of his petition. Because, as discussed above, petitioner has failed to name the correct respondent, this request will be denied at this time. Upon filing of a petitioner naming the correct respondent and stating cognizable claims, the court will direct service on the appropriate agency.
Finally, petitioner seeks the appointment of counsel (Doc. 5). 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 leave to proceed in forma pauperis (Doc. 4) is granted;
2. Petitioner's petition for writ of habeas corpus (Doc. 1) is dismissed with leave to amend;
3. Petitioner's "Summons Motion" (Doc. 8) is denied;
4. Petitioner shall file an amended petition on the form employed by this court, and which names the proper respondent and states all claims and requests for relief, within 30 days of the date of this order; and
5. Petitioner's motion for appointment of counsel (Doc. 5) is denied without prejudice to renewal, at the earliest, after a response to the petition has been filed; and / / / / / /
6. The Clerk of the Court is directed to send petitioner the court's form habeas corpus application. DATED: May 24, 2017
/s/_________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE