Opinion
No. CIV S-08-0448 JAM KJM P.
May 22, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
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.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.
Petitioner has also requested that the court direct the production of a videotape of an interview with witness Teresa Oliver, which he refers to as Exhibit E. He alleges that the videotape will show that Oliver perjured herself on the witness stand and will support his claims that trial counsel was improperly precluded from cross-examining her on the promises made to secure her testimony. See Petition, Memorandum of Points and Authorities at 9-15. This is appropriate.
Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's habeas petition.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis is granted;
2. Petitioner's request to submit an "overlength" memorandum of points and authorities (docket no. 2) is granted;
3. Petitioner's motion for the appointment of counsel (docket no. 6) is denied without prejudice;
4. Petitioner's motions for discovery and to include evidence (docket nos. 5 and 9), treated as requests to expand the record, are granted and respondents are directed to lodge a copy of the videotaped interview with Teresa Oliver when lodging the state court trial record;
5. Respondents are directed to file a response to petitioner's habeas petition within sixty days from the date of this order.See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed.R. Governing § 2254 Cases;
6. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;
7. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fifteen days thereafter; and
8. The Clerk of the Court shall serve a copy of this order together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.