Opinion
No. CIV S-10-2263 EFB P.
January 5, 2011
ORDER
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus. See 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
On October 15, 2010, the court dismissed petitioner's original application for a writ of habeas corpus with leave to amend. The dismissal order explained the deficiencies in the petition, gave petitioner thirty days to file an amended petition and warned petitioner that failure to file an amended petition would result in dismissal.
The 30-day period has expired and petitioner has not filed an amended petition or otherwise responded to the court's order. Petitioner did, however, request the appointment of counsel, forms for filing a civil complaint pursuant to 42 U.S.C. § 1983, and expressed his intent to file a civil rights action pursuant to 42 U.S.C. § 1983. Dckt. No. 15.
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). The court may appoint counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. Here, the court does not find that the interests of justice would be served by the appointment of counsel.
Accordingly, it is hereby ORDERED that:
1. Petitioner's December 29, 2010 request for appointment of counsel is denied.
2. The Clerk of the Court is directed to send to petitioner a copy of the form used in this court for the filing of a civil complaint pursuant to 42 U.S.C. § 1983.
3. This action is dismissed without prejudice to the filing of a separate civil rights action.
Dated: January 4, 2011