Opinion
No. CIV S-05-1621-LKK-CMK-P.
August 16, 2006
ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are the following:
1. Petitioner's document entitled "Second Amended Complaint," (Doc. 19);
2. Petitioner's motion to amend the petition (Doc. 23);
3. Petitioner's request for documents (Doc. 26);
4. Petitioner's motion to compel (Doc. 29);
5. Petitioner's motion for appointment of counsel (Doc. 30); and
6. Petitioner's request for an extension of time to file a traverse (Doc. 31).
Petitioner's document entitled "Second Amended Complaint," which is filed on a court form § 2254 habeas petition, lists only the parties to this case, and nothing else. The document will be stricken and shall have no effect on this case.
In plaintiff's motion to further amend the petition, petitioner seeks to substitute Anthony J. Malfi, the successor to J. Walker as warden of petitioner's place of incarceration. Pursuant to Federal Rule of Civil Procedure 25(d), Anthony J. Malfi is substituted for his predecessor J. Walker. The Clerk of the Court will be directed to update the docket to reflect this substitution. Because the court does this sua sponte, petitioner's motion is unnecessary and will be denied as such.
As to petitioner's request for documents, he states that, in response to the court's December 13, 2005, findings and recommendations regarding exhaustion, he sent to the court his state court briefs rather than the denial notices from the state courts. Petitioner states that he does not have additional copies of these documents and asks that the documents be returned to him. While the court cannot return documents which have become a part of its file, the court will direct the Clerk of the Court to send petitioner copies of the requested documents, which have been filed under docket entries 10 and 11.
Next, in petitioner's motion to compel, petitioner seeks an order directing the respondents to provide him copies of certain documents. While the request is not entirely clear, it appears that the documents sought in this request are the same documents referenced in the preceding paragraph. Therefore, there is no need to direct the respondents to provide petitioner documents.
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. The request will be denied.
Finally, petitioner seeks a 60-day extension of time to file a traverse. The request will be granted.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to update the docket to reflect that Anthony J. Malfi has been substituted for his predecessor J. Walker as warden;
2. Petitioner's document entitled "Second Amended Complaint" (Doc. 19) is stricken;
3. Petitioner's motion to amend the petition is denied as unnecessary;
4. Petitioner's request for documents is granted;
5. The Clerk of the Court shall send plaintiff copies of those documents filed as docket entries 10 and 11;
6. Petitioner's motion to compel is denied;
7. Petitioner's motion for appointment of counsel is denied;
8. Petitioner's motion for an extension of time to file a traverse is granted; and
9. Petitioner may file a traverse within 60 days of the date of service of this order.