(HC) Lyons, et al v. White, et al, No. 2:1996cv00784 - Document 80 (E.D. Cal. 2009)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/16/09 ORDERING that petitioner's motion for appointment of counsel filed 09/11/09 78 is denied. Also, RECOMMENDING that petitioner's motion for relief from judgment, filed 09/11/09 be dismissed. MOTION for Relief from judgment referred to Judge Garland E. Burrell. Objections due within 10 days. (Plummer, M) Modified on 1/21/2010 (Kaminski, H).

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(HC) Lyons, et al v. White, et al Doc. 80 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 WILLIE CARL LYONS, 11 Petitioner, 12 13 14 No. CIV S-96-0784 GEB GGH P vs. THEO WHITE, ORDER & Respondent. FINDINGS AND RECOMMENDATIONS / 15 16 Petitioner moves for relief from this court’s order and judgment entered February 17 28, 2001, denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner 18 also moves for appointment of counsel. (Doc. 78, 79). Petitioner filed similar motions in 2006, 19 which were denied by this court on March 14, 2007, and May 5, 2007. (Doc. 74, 77). As in his 20 prior motions, petitioner seeks relief pursuant to Fed. R. Civ. P. 60(b), to obtain reconsideration 21 of the court’s dismissal of his original Claims 1, 2, 5, 6, and 7, on the ground that petitioner has 22 obtained new evidence demonstrating his actual innocence. This evidence is purportedly set 23 forth in numerous affidavits (not provided to the court) which together demonstrate that the 24 victim of the assaults for which plaintiff was convicted and is presently incarcerated, was in fact 25 a willing participant. 26 The instant motion for relief from judgment is construed as a successive Dockets.Justia.com 1 application for a writ of habeas corpus, presenting the same claims raised in petitioner’s initial 2 application. The instant application must therefore be dismissed. See 28 U.S.C. § 2244(b)(1). 3 Petitioner may pursue a successive habeas corpus application in this court pursuant only to 4 authorization by the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244(3)(A). 5 Petitioner also requests appointment of counsel. There currently exists no 6 absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 7 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at 8 any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing 9 § 2254 Cases. The court does not find that the interests of justice would be served by 10 appointment of counsel at the present time. Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for appointment 11 12 of counsel, filed September 11, 2009 (Doc. 78), is DENIED. Further, IT IS HEREBY RECOMMENDED that petitioner’s motion for relief 13 14 from judgment, filed September 11, 2009 (Doc. 79), be DISMISSED. These findings and recommendations are submitted to the United States District 15 16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten 17 (10) days after being served with these findings and recommendations, any party 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.” Any reply to the objections 20 shall be served and filed within ten (10) days after service of the objections. The parties are 21 advised that failure to file objections within the specified time may waive the right to appeal the 22 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: December 16, 2009 24 /s/ Gregory G. Hollows 25 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 26 GGH:md lyon0784.110

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