Opinion
No. CIV S-06-2635 FCD DAD P.
August 24, 2007
ORDER
On May 18, 2006, petitioner, along with thirty-one other state prisoners, filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (No. CIV S-06-1083 MCE PAN P). All of the prisoners signed the petition, but only one petitioner filed a motion to proceed in forma pauperis. On November 22, 2006, United States Magistrate Judge Moulds directed the Clerk of the Court to open separate civil actions for each prisoner, including petitioner in this action, and granted each prisoner thirty days to file an amended petition and to either pay the $5.00 filing fee or file an application to proceed in forma pauperis. Petitioner Prayor has filed an amended petition. Petitioner has also filed an application to proceed in forma pauperis and a motion to appoint counsel.
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 is advised that 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.
Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response to petitioner's amended 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 August 8, 2007 motion to appoint counsel is denied;
3. Respondents are directed to file a response to petitioner's February 8, 2007 amended habeas petition within thirty 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;
4. 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;
5. 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
6. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's February 8, 2007 amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.