Caetano v. Peery

Full title: NATHAN CAETANO, Petitioner, v. S. PEERY, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Feb 7, 2017

1:15-cv-00832 LJO MJS HC (E.D. Cal. Feb. 7, 2017)

Opinion

1:15-cv-00832 LJO MJS HC

02-07-2017

NATHAN CAETANO, Petitioner, v. S. PEERY, Respondent.

Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE

ORDER

ADOPTING FINDINGS AND RECOMMENDATION;

DENYING MOTION TO DISMISS;

GRANTING MOTIONS TO RULE ON FINDINGS AND RECOMMENDATION;

DENYING, WITHOUT PREJUDICE, MOTION TO APPOINT COUNSEL; DENYING, WITHOUT PREJUDICE, MOTION FOR PRODUCTION OF DISCOVERY [Docs. 20, 31, 35-38, 40]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On August 25, 2016, the Magistrate Judge issued an Amended Findings and Recommendation to deny, without prejudice, Respondent's Motion to Dismiss because of the potential Petitioner could be found entitled to equitable tolling based on his mental condition. This Amended Findings and Recommendation was served on all parties. The parties were given thirty days thereafter to file objections to the Amended Findings and Recommendations. No objections were filed within the allotted time or otherwise.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the Magistrate Judge's Amended Findings and Recommendation is supported by the record and proper analysis.

Petitioner has however filed several motions since the Magistrate Judge issued the Amended Findings and Recommendation. The Court will address each in turn.

First, Petitioner requests that the Court rule upon the Amended Findings and Recommendation. (ECF No. 40.) The motion is GRANTED, and the Court, by way of this Order, is adopting the Amended Findings and Recommendation and denying the motion to dismiss.

Petitioner requests additional discovery to support his claims. (See, e.g., ECF Nos. 35-38.) These motions are DENIED without prejudice.

First, several of the requests appear to be for production of evidence in support of Petitioner's claim of equitable tolling. However, as Respondent has not objected to the Findings and Recommendation, there is no pending challenge to the timeliness of Plaintiff's Petition and so no current need for evidence in support of Petitioner's claim of equitable tolling.

To the extent Petitioner requests additional discovery regarding the merits of his claim, the motions are still DENIED without prejudice. This Court, in reviewing Petitioner's claims and determining if the state court decision was reasonable, may only rely upon the record before the state court. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) ("We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."). As such, further discovery is not warranted at this time. If, upon substantive review of the petition, the Court determines that discovery is necessary, it will provide Petitioner the opportunity to conduct same.

Finally, Petitioner requests 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, Title 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. In the present case, the Court does not find that the interests of justice require the appointment of counsel at the present time. Petitioner's request for appointment of counsel is DENIED without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. The Amended Findings and Recommendation issued August 25, 2016, is ADOPTED IN FULL;

2. Respondent's Motion to Dismiss is DENIED;

3. Petitioner's motion requesting ruling (ECF No. 40) is GRANTED;

4. Petitioner's motions for discovery and appointment of counsel are DENIED without prejudice (ECF No. 35-38); and

5. The Court hereby orders the Magistrate Judge to schedule further briefing as appropriate in light the Court's ruling on Respondent's motion to dismiss.

IT IS SO ORDERED.

Dated: February 7 , 2017

/s/ Lawrence J. O'Neill

UNITED STATES CHIEF DISTRICT JUDGE