(HC) Holloway v. Curry, No. 2:2009cv00922 - Document 18 (E.D. Cal. 2010)

Court Description: ORDER ADOPTING 14 FINDINGS AND RECOMMENDATIONS in full signed by Judge Morrison C. England, Jr. on 09/17/10 and ORDERING that petitioner's 13 Motion for Stay and Abeyance is DENIED; petitioner's third and fourth claims for relief are DI SMISSED as unexhausted; petitioner's 17 09/13/10 Request for a COA and Request for Appointment of Counsel are DENIED; the Magistrate Judge shall issue an order directing the respondent to file a response to Grounds One and Two of petitioner's petition for a writ of habeas corpus. (Benson, A.)
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(HC) Holloway v. Curry Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LOUIS HOLLOWAY, 12 Petitioner, 13 14 No. 2:09-00922-MCE-DAD P vs. ORDER BEN CURRY, 15 Respondent. 16 / 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 27, 2010, the magistrate judge filed findings and recommendations herein which 21 were served on petitioner and which contained notice to petitioner that any objections to the 22 findings and recommendations were to be filed within twenty-one days. Petitioner was granted 23 an extension of time on August 16, 2010. On September 13, 2010, petitioner filed objections to 24 the findings and recommendations. 25 /// 26 /// 1 Dockets.Justia.com 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 court finds the findings and recommendations to be supported by the record and by proper 4 analysis. 5 Petitioner has also requested that a certificate of appealability issue should the court adopt 6 the findings and recommendations. The request will be denied. The court cannot issue a 7 certificate since an order denying a motion for stay and abeyance is not a final, appealable order 8 under 28 U.S.C. § 1291. 9 Lastly, in his objections petitioner has requested the appointment of counsel. There 10 currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius 11 v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the 12 appointment of counsel at any stage of the case “if the interests of justice so require.” See Rule 13 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the 14 interests of justice would be served by the appointment of counsel at the present time. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The findings and recommendations filed July 27, 2010, are adopted in full; 17 2. Petitioner’s February 19, 2010 motion for a stay and abeyance (Doc. No. 13) is denied; 18 3. Petitioner’s third and fourth claims for relief are dismissed as unexhausted; 19 4. Petitioner’s September 13, 2010 request for a certificate of appealability and request 20 21 22 23 24 25 for appointment of counsel are denied; and 5. The Magistrate Judge shall issue an order directing the respondent to file a response to Grounds One and Two of petitioner’s petition for a writ of habeas corpus. Dated: September 17, 2010 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 26 2