Opinion
No. 2:15-cv-2461 AC P
12-08-2015
JOHN ALAN PARVIN, Petitioner, v. ROBERT FOX, Warden, California Medical Facility, Respondent.
ORDER and FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).
Examination of the in forma pauperis affidavit demonstrates that petitioner is unable to afford the costs of suit. Accordingly, his request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).
The court's records reveal that petitioner has previously filed an application for a writ of habeas corpus attacking the same conviction and sentence challenged in this case. See Parvin v. Cate, Case No. 2:09-cv-02198 JFM P. The previous application was filed on August 10, 2009, and dismissed as untimely on March 1, 2010. Thereafter, the United States Court of Appeals for the Ninth Circuit denied petitioner's request for a certificate of appealability.
Petitioner has recently exhausted allegedly new claims in the state courts. Nevertheless, before petitioner can proceed with the instant application, he must move in the Ninth Circuit Court of Appeals for an order authorizing the district court to consider the application. See 28 U.S.C. § 2244(b)(3). Therefore, petitioner's current application must be dismissed without prejudice to its re-filing upon authorization from the Court of Appeals.
Petitioner also requests the appointment of counsel in a boiler-plate motion. There is no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). Although appointment may be authorized under 18 U.S.C. § 3006A "if the interests of justice so require," Rule 8(c), Fed. R. Governing § 2254 Cases, this requirement is not met at the present time. Therefore, petitioner's request for appointment of counsel is denied.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's motion to proceed in forma pauperis, ECF No. 2, is granted.
2. Petitioner's motion for appointment of counsel, ECF No. 3, is denied without prejudice.
3. The Clerk of Court is directed to randomly assign a district judge to this action.
In addition, IT IS HEREBY RECOMMENDED that that this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: December 8, 2015
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE