(HC) Koenig v. Koenig ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES STANLEY KOENIG, No. 2:21-CV-1145-JAM-DMC-P 12 Petitioner, ORDER 13 v. 14 C. KOENIG, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas 18 corpus under 28 U.S.C. § 2254. Pending before the Court is Petitioner’s second motion for 19 the appointment of counsel, ECF No. 20. 20 There currently exists no absolute right to appointment of counsel in habeas 21 proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. 22 § 3006A authorizes the appointment of counsel at any stage of the case “if the interests of justice 23 so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the Court does 24 not find that the interests of justice would be served by the appointment of counsel. Petitioner 25 asserts eight claims for relief and concedes that Claim Eight is unexhausted. The petition is thus 26 a “mixed” petition containing both exhausted and unexhausted claims. Respondent has filed a 27 motion to dismiss the petition as a mixed petition containing unexhausted claims and asserts that 28 a stay to allow Petitioner to exhaust Claim Eight in state court is not warranted. Thus, the sole 1 | issue currently to be decided before the case can move forward in this Court is whether a stay is 2 | warranted. Given that this issue has been fully briefed, the Court does not find that the interests 3 | of justice require additional briefing on behalf of Petitioner by appointed counsel. 4 Respondent’s motion to dismiss and Petitioner’s motion for a stay-and-abeyance 5 | order will be addressed by separate findings and recommendations. 6 Accordingly, IT IS HEREBY ORDERED that Petitioner’s second motion for 7 | appointment of counsel, ECF No. 20, is denied. 8 9 || Dated: January 31, 2022 Ssvcqo_ 10 DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28