(HC) Proffitt v. Lazarrag ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY PROFFITT, No. 2:20-cv-00667 KJM GGH P 12 Petitioner, 13 v. ORDER 14 JOE LIZARRAG, Warden, 15 Respondent. 16 17 Petitioner has requested the appointment of counsel. There currently exists no absolute 18 right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 19 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage 20 of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. 21 In the present case, the court does not find that the interests of justice would be served by the 22 appointment of counsel at the present time. 23 In addition, petitioner has requested discovery in the form of an evidentiary hearing and 24 subpoenas. ECF No. 13. “A habeas petitioner, unlike the usual civil litigant in federal court, is not 25 entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S. 26 Ct. 1793, 1796–97, 138 L. Ed. 2d 97 (1997). Rule 6 of the Rules Governing § 2254 Cases 27 provides discovery, at the court’s discretion, and upon a showing of good cause. Id. However, 28 here, discovery would not be appropriate given this action is successive and has been 1 recommended to be dismissed without prejudice to its re-filing upon obtaining authorization from 2 the United States Court of Appeals for the Ninth Circuit. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Petitioner’s motion for appointment of counsel (ECF No. 15) is denied without 5 prejudice; and 6 2. Petitioner motion for pre-trial hearing (ECF No. 13) is denied. 7 Dated: June 10, 2020 /s/ Gregory G. Hollows 8 UNITED STATES MAGITRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28