Opinion
No. CIV S-07-2601 LKK EFB P.
February 11, 2008
ORDER
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.
A petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as respondent the Director of the California Department of Corrections and Rehabilitation, who does not have custody over petitioner. Petitioner must file an amended petition naming the proper respondent.
He has requested that the court appoint 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). The court may appointment counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings.
Petitioner has filed a motion to dismiss the criminal case in which he was convicted and vacate the judgment. This motion raises claims of judicial bias that should be presented in his amended petition for writ of habeas corpus.
Petitioner has also filed a motion to expand the record and for an evidentiary hearing. Those motions are premature without a viable petition on file. Accordingly, those motions are denied without prejudice to renewal once a viable petition is filed.
Accordingly, it is ORDERED that:
1. Petitioner's request for leave to proceed in forma pauperis is granted.
2. The December 4, 2007, petition is dismissed with leave to file an amended petition naming the proper respondent and stating all claims for relief within 30 days of the date of this order. Petitioner's failure to file an amended petition will result in a recommendation that this action be dismissed without prejudice. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court.
3. Petitioner's December 4, 2007, motion for appointment of counsel is denied without prejudice.
4. Petitioner's December 4, 2007, motion to dismiss his criminal case and vacate the judgment is dismissed.
5. Petitioner's December 4, 2007, motion to expand the record and for an evidentiary hearing, is denied without prejudice.