Opinion
No. CIV S-10-0114 FCD DAD P.
April 29, 2011
ORDER
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 any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. Rules 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.
Petitioner has also requested clarification from the court with respect to his exhausted and unexhausted claims, as well as copies of court documents. (Doc. No. 33.) The court will direct the Clerk of the Court to provide petitioner with a copy of the undersigned's findings and recommendations, filed on December 15, 2010, wherein the court identified the claims set forth in petitioner's amended petition that are unexhausted and should not be included in any second amended petition for a writ of habeas corpus petitioner elects to file. Petitioner's exhausted claims as designated in his amended petition are: Ground One sub-b, in which petitioner claims he received ineffective assistance of counsel based upon his counsel's failure to request a pinpoint instruction regarding petitioner's state of mind during the murder in question, Ground Three, Ground Four, and Ground Five.
The findings and recommendations were adopted by the assigned District Judge on February 24, 2011. (Doc. No. 28.)
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's April 20, 2011 motion for appointment of counsel (Doc. No. 32) is denied without prejudice to a renewal of the motion at a later stage of the proceedings;
2. Petitioner's April 20, 2011 request for copies of court records (Doc. No. 33) is granted in part;
3. Petitioner shall file his second amended petition within thirty days frm the service of this order; the second amended petition must bear the docket number assigned this case and must be labeled "Second Amended Petition;" petitioner shall use the form petition provided by the Clerk of the Court and answer each question on the form and sign the form on the last page; petitioner's failure to file a second amended petition in accordance with this order will result in the dismissal of this action; and
4. The Clerk of the Court is directed to provide petitioner with a copy of the court's form petition for a writ of habeas corpus, and a copy of the court's December 15, 2010 findings and recommendations (Doc. No. 25).
DATED: April 28, 2011.