Opinion
No. CIV S-02-1671 GEB JFM P.
August 16, 2006
ORDER
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1999 conviction on charges of being an ex-felon in possession of a firearm, driving under the influence of alcohol or drugs, and driving with a blood alcohol level of .08 or higher, and the sentence of twenty-five years to life in prison imposed thereon under California's Three Strikes Law. Petitioner claims violations of his constitutional rights by ineffective assistance of counsel, unlawful sentencing procedures, prosecutorial misconduct, denial of right to jury trial with respect to his prior convictions, and insufficient evidence to support the conviction.
The sentence was based on the convictions and a finding that petitioner had sustained two prior serious felony convictions within the meaning of California Penal Code §§ 667(b) (-(1) and 1170.12. (See Exs. C and D to Respondent's Motion to Dismiss, filed February 6, 2003.)
On January 28, 2005, petitioner filed a request for an evidentiary hearing. This court finds no basis in the record for an evidentiary hearing in this matter. Petitioner's request will therefore be denied.
Petitioner has filed three motions to amend his traverse. By the first two motions, filed November 22, 2005 and December 2, 2005, petitioner seeks primarily to add documents and arguments relevant to another conviction that he sustained in Yolo County. That conviction is not at issue in these proceedings. For that reason, petitioner's first two motions to amend his traverse will be denied. The proposed supplemental traverse filed January 6, 2006, that is the subject of the third request to amend, does include documents that may be relevant to disposition of petitioner's claims. Accordingly, petitioner's December 8, 2006 request to amend his traverse will be granted and the supplemental traverse submitted January 6, 2006 deemed properly filed as of that date.
Petitioner has also filed a motion for court-ordered service of the December 2, 2005 motion to amend on counsel for respondent. Petitioner has not shown that he was unable to properly serve the motion to amend on counsel for respondent. His motion for court-ordered service thereof will therefore be denied.
Finally, on June 6, 2006, petitioner filed a second motion for 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 still does not find that the interests of justice would be served by the appointment of counsel at the present time. Accordingly, petitioner's motion for appointment of counsel will be denied.
Petitioner's first motion was filed May 24, 2005 and denied by order filed March 8, 2006.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's January 28, 2005 request for an evidentiary hearing is denied;
2. Petitioner's November 22, 2005 motion to amend his traverse is denied;
3. Petitioner's December 2, 2005 motion to amend his traverse is denied;
4. Petitioner's December 2, 2005 motion for court-ordered service on the California Attorney General is denied;
5. Petitioner's December 8, 2005 request for leave to amend his traverse is granted;
6. Petitioner's proposed supplemental traverse, submitted January 6, 2006, is deemed filed as of that date; and
7. Petitioner's June 6, 2006 motion for appointment of counsel is denied.