Opinion
NO. CV 14-5262-PSG(E)
07-17-2014
JOSE CARMEN MURILL GARCIA, Petitioner, v. JOHN N. KATAVICH, Warden, Respondent.
ORDER RE "MOTION AND
DECLARATION FOR APPOINTMENT
OF COUNSEL"
On July 8, 2014, Jose Carmen Murill Garcia, a state prisoner, filed a "Motion and Declaration For Appointment of Counsel" ("Motion"). Mr. Garcia, who has not yet filed a petition for a writ of habeas corpus in this Court, seeks the appointment of counsel to file such a petition. Mr. Garcia currently is serving a life sentence for first degree murder. See People v. Garcia, 223 Cal. App. 4th 1173, 168 Cal. Rptr. 3d 23 (2014).
Unlike a capital prisoner who may commence a habeas corpus proceeding by filing a request for the appointment of counsel, a non-capital prisoner must initiate a habeas corpus proceeding by filing a habeas corpus petition pursuant to 28 U.S.C. section 2254. See Calderon v. United States District Court for the Northern District of California (Nicolaus), 98 F.3d 1102, 1107 n.3 (9th Cir. 1996), cert. denied, 520 U.S. 1233 (1997); see also Mayfield v. McEwen, 2010 WL 3955788, at *1 (S.D. Cal. Oct. 8, 2010) (non-capital prisoner could not commence habeas proceeding by filing a motion for an order permitting prisoner to make copies of exhibits at prison law library); Sexton v. McDonald, 2009 WL 3401264, at *1 (S.D. Cal. Oct. 20, 2009) (filing of motion to toll habeas statute of limitations did not initiate habeas proceeding in non-capital case). Mr. Garcia's Motion is insufficient to commence a habeas proceeding in this Court. Accordingly, the Motion is denied and the action is dismissed without prejudice.
IT IS SO ORDERED.
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PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE
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CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
See 18 U.S.C. § 3599(a)(2); McFarland v. Scott, 512 U.S. 849, 856-57 (1994).