(HC) Deary-Smith v. Bonta ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RASHID DESHAWN DEARY-SMITH, No. 2:20-cv-00572 KJM GGH P 12 Petitioner, 13 v. ORDER 14 STUART SHERMAN, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with an application for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. 19 In light of petitioner’s inability, coupled potentially with petitioner’s brain injury, to 20 provide the court with information necessary to determine whether a meritorious claim of any 21 nature has been presented in petitioner’s habeas petition, the court has determined that the 22 interests of justice require appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); see also 23 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The first amended petition will be 24 dismissed, and appointed counsel will be granted sixty days in which to file an amended petition. 25 The court will appoint counsel for the limited purpose of representing petitioner in the filing of 26 his Second Amended Petition. The filing of the Second Amended Petition will terminate the 27 counsel’s appointment unless otherwise extended by the court. 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Petitioner’s first amended petition is dismissed with leave to file an amended petition 3 within sixty days; 4 2. The Federal Defender is appointed to represent petitioner for the limited purpose of 5 filing a Second Amended Petition; 6 3. Within sixty days of this order, petitioner’s counsel shall file: 7 A. An amended petition which will proceed on exhausted claims only; or 8 B. An amended petition which identifies both exhausted and unexhausted claims, 9 demonstrates good cause for having failed to exhaust state court remedies as to any claims,1 10 and any intention to pursue unexhausted claims, after which the court may recommend that the 11 proceedings be held in abeyance while petitioner exhausts any new claims in state court; 12 4. The filing of the Second Amended Petition will terminate the counsel’s appointment 13 unless otherwise extended by the court; and 14 5. The Clerk of the Court is directed to serve a copy of the petition and this order on the 15 Federal Defender, Attention: Habeas Appointment. 16 Dated: July 22, 2020 /s/ Gregory G. Hollows 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 1 Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005).