(HC) Martinez v. Cates ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFONSO HENRY MARTINEZ, No. 2:23-cv-1323 KJN P 12 Petitioner, 13 v. ORDER 14 SAN JOAQUIN COUNTY SHERIFF, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable to afford 20 the costs of suit. Accordingly, the application to proceed in forma pauperis is granted. See 28 21 U.S.C. § 1915(a). 22 On August 21, 2023, petitioner was granted thirty days to file an amended motion to stay 23 to clarify the type of stay petitioner seeks. (ECF No. 6.) Subsequently, petitioner’s copy of the 24 order was returned as undeliverable. Petitioner then filed a consent form which did not contain a 25 return address for petitioner. (ECF No. 7.) However, since then, petitioner filed two notices of 26 change of address - first to High Desert State Prison in Susanville, and then to California 27 Correctional Institution in Tehachapi. Petitioner was initially housed at the San Joaquin County 28 Jail in French Camp. ] Review of this record appears to demonstrate that petitioner intends to pursue this action 2 || but did not receive the court’s last order, likely based on his frequent transfers to different 3 || correctional institutions. Therefore, the undersigned directs the Clerk of the Court to re-serve the 4 | August 21, 2023 order on petitioner’s current address and grants him an additional thirty days in 5 || which to file an amended motion for stay. 6 Petitioner also requested the appointment of counsel. There currently exists no absolute 7 || right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 8 | (th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage 9 || of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. 10 | In the present case, the court does not find that the interests of justice would be served by the 11 || appointment of counsel at the present time. 12 Accordingly, IT IS HEREBY ORDERED that 13 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 3) is granted; 14 2. Petitioner’s request for appointment of counsel (ECF No. 5) is denied without 15 || prejudice; 16 3. Petitioner is granted thirty days from the date of this order to file an amended motion 17 || for stay that complies with the August 21, 2023 order; and 18 4. The Clerk of the Court is directed to serve a copy of the August 21, 2023 order on 19 || petitioner at his current address. 20 | Dated: October 2, 2023 Aectl Aharon 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 54 /mart1323.110+ 25 26 27 28