-DAD (TEMP)(HC) Nguon v. Virga, No. 2:2011cv00124 - Document 8 (E.D. Cal. 2011)
Court Description: ORDER signed by Magistrate Judge Dale A. Drozd on 3/10/11 ORDERING that 5 FINDINGS AND RECOMMENDATIONS are VACATED; Petitioners habeas corpus petition is DISMISSED; Petitioners request for leave to file an amended petition for writ of habeas corpus is GRANTED. Clerk of the Court is directed to send petitioner the courts form application for writ of habeas corpus by persons in state custody. Petitioners request for the appointment of counsel, contained in his objections filed 3/8/11, is DENIED.(Dillon, M)
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-DAD (TEMP)(HC) Nguon v. Virga Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 HUNG DUONG NGUON, Petitioner, 11 12 vs. 13 No. CIV-S-11-0124 LKK DAD (TEMP) P TIM V. VIRGA, Respondent. 14 ORDER / 15 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas 16 17 corpus pursuant to 28 U.S.C. § 2254. On February 2, 2011, the court recommended that this 18 action be dismissed. In his objections to the findings and recommendations, petitioner requests 19 leave to file an amended petition. Because petitioner is allowed to amend his original pleading as 20 a matter of right under Rule 15(a) of the Federal Rules of Civil Procedure, petitioner’s request for 21 leave to amend will be granted. In his objections, petitioner also requests the appointment of counsel. There 22 23 currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius 24 v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the 25 appointment of counsel at any stage of the case “if the interests of justice so require.” See Rule 26 ///// 1 Dockets.Justia.com 1 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the 2 interests of justice would be served by the appointment of counsel. 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. The court’s February 2, 2011, findings and recommendations are vacated. 5 2. Petitioner’s habeas corpus petition is dismissed. 6 3. Petitioner’s request for leave to file an amended petition for writ of habeas 7 corpus is granted. Any amended petition must be submitted on the form to be provided by the 8 Clerk of the Court. Failure to submit an amended petition within thirty days will result in this 9 action being dismissed. 4. The Clerk of the Court is directed to send petitioner the court’s form- 10 11 application for writ of habeas corpus by persons in state custody. 5. Petitioner’s request for the appointment of counsel, contained in his objections 12 13 filed March 8, 2011, is denied. 14 DATED: March 10, 2011. 15 16 17 18 DAD:kc nguo0124.vfrs 19 20 21 22 23 24 25 26 2
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