(HC) Caldwell v. Foss ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN CALDWELL, No. 2:19-cv-00679 TLN GGH P 12 Petitioner, 13 v. ORDER 14 V. FOSS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. §2254. The matter was referred to the United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c). 20 On October 22, 2019, the undersigned issued Findings and Recommendations 21 recommending dismissal due to petitioner’s failure to respond to court orders or take any action to 22 prosecute this case. ECF No. 11. Prior, petitioner had neither filed an opposition, nor a statement 23 of non-opposition, to respondent’s motion to dismiss within the requisite deadline, nor responded 24 to the court’s order to show cause for failure to prosecute or comply with the court’s orders. Id. 25 Petitioner has now filed a motion for extension of time to file objections to the undersigned’s 26 Findings and Recommendations and to file a response to respondent’s motion to dismiss. ECF 27 No. 12. Petitioner states his reasons for his request and failure to timely respond have been due to 28 prison lock downs, or some type of modified lock down, due to an alleged gun in prison; power 1 outage; petitioner’s transfers from different facilities; and his ignorance of the law. Id. The court 2 will afford petitioner an opportunity to respond to respondent’s motion to dismiss. However, 3 petitioner need not file objections to the October 22, 2019 Findings and Recommendations as 4 these will be vacated. However, petitioner shall take care to comply with the court’s deadlines 5 and orders or risk a recommendation that this action be dismissed for failure to prosecute and/or 6 to follow a court order pursuant to Federal Rules of Civil Procedure 41(b). 7 Petitioner has also requested the appointment of counsel. ECF No. 13. There currently 8 exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 9 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of 10 counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. 11 Governing § 2254 Cases. In the present case, the court does not find that the interests of justice 12 would be served by the appointment of counsel at the present time. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The Findings and Recommendations issued October 22, 2019 (ECF No. 11), is 15 VACATED; 16 2. Petitioner’s motion for appointment of counsel (ECF No. 13) is denied without 17 prejudice to a renewal of the motion at a later stage of the proceedings; 18 3. Petitioner’s request for an extension of time (ECF No. 12) is granted; 19 4. Petitioner shall file an opposition or statement of non-opposition to respondent’s 20 motion to dismiss within thirty days from the date of this order; 21 5. Respondent reply, if any, shall be filed and served within fourteen days thereafter; and 22 6. Petitioner is further warned that failure to comply with this order will result in a 23 recommendation that this action be dismissed without prejudice. 24 Dated: November 28, 2019 /s/ Gregory G. Hollows 25 UNITED STATES MAGISTRATE JUDGE 26 27 28