(HC) Licciardi v. Virga, No. 2:2012cv02840 - Document 8 (E.D. Cal. 2012)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/10/12 denying 2 Motion to Appoint Counsel. Also, RECOMMENDING that petitioner's application for a writ of habeas corpus be dismissed; and this case be closed. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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(HC) Licciardi 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 ROBERT LICCIARDI, Petitioner, 11 12 13 14 15 No. 2:12-cv-2840 MCE CKD P vs. VIRGA, ORDER AND Respondent. FINDINGS AND RECOMMENDATIONS / 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee. Under Rule 4 of the 18 Rules Governing § 2254 Cases, the court must conduct a preliminary review of § 2254 habeas 19 petitions and dismiss any petition where it plainly appears that petitioner is not entitled to relief. 20 The court shall entertain an application for writ of habeas corpus by a state 21 prisoner only if it is alleged that the prisoner is in custody in violation of federal law. 28 U.S.C. 22 § 2254(a). In a federal habeas proceeding, a state prisoner can challenge the fact that he is 23 confined or the duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). 24 Petitioner seeks an order directing the Superior Court of San Joaquin County to appoint 25 petitioner a lawyer, pursuant to a provision of California law, to investigate whether there is a 26 basis to file a motion for DNA testing. Because petitioner does not allege he is in custody in 1 Dockets.Justia.com 1 violation of federal law, or that the length of his sentence violates federal law, the court does not 2 have habeas jurisdiction over this matter. Therefore, the court will recommend that this case be 3 dismissed. Finally, petitioner has requested the appointment of counsel in this action. There 4 5 currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius 6 v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the 7 appointment of counsel at any stage of the case “if the interests of justice so require.” See Rule 8 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the 9 interests of justice would be served by the appointment of counsel. In accordance with the above, IT IS HEREBY ORDERED that petitioner’s 10 11 motion for the appointment of counsel (Dkt. No. 2) is denied; and 12 IT IS HEREBY RECOMMENDED that: 13 1. Petitioner’s application for writ of habeas corpus be dismissed; and 14 2. This case be closed. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 17 days after being served with these findings and recommendations, petitioner may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 20 may address whether a certificate of appealability should issue in the event he files an appeal of 21 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 22 court must issue or deny a certificate of appealability when it enters a final order adverse to the 23 applicant). Petitioner is advised that failure to file objections within the specified time may 24 ///// 25 ///// 26 ///// 2 1 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 2 1991). 3 Dated: December 10, 2012 4 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 1 licc2840.dis 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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