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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MAURICIO R. MUNOZ,

Petitioner, No. CIV S-04-1658 LKK PAN P

vs.

JOHN MARSHALL, Warden,

Respondent. ORDER

 /

Petitioner is a state prisoner proceeding pro se with an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. In findings and recommendations filed April 27,

2005, the court found that petitioner’s application contained both exhausted and unexhausted

claims. The court recommended that petitioner be granted a period of sixty days in which to file

a motion to stay this action and hold it in abeyance pending exhaustion of state remedies. By

order filed July 12, 2005, the findings and recommendations were adopted in full and petitioner

was granted a period of sixty days in which to file a motion for stay and abeyance. 

On July 25, 2005, petitioner filed a document which was docketed in this action as

an amended petition. On September 8, 2005, respondent moved to dismiss the amended petition

on the ground that none of the claims raised therein are exhausted. Review of the pleading filed

July 25, 2005 shows that it is in fact a copy of a state petition for writ of habeas corpus filed in

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 In his statement of non-opposition to petitioner’s request for stay, respondent 1

recognizes that the document filed July 25, 2005 is in fact a copy of a state court petition. See

Notice of Non-Opposition to Motion for Stay and Abeyance, filed January 11, 2006, at 2 n.1.

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the Yuba County Superior Court. Good cause appearing, the Clerk of the Court will be directed

to change the docket entry accordingly. Respondent’s motion to dismiss will be deemed

withdrawn. 

1

On December 22, 2005, petitioner has filed a motion to stay these proceedings

pending exhaustion of state remedies as to unexhausted claims. Respondent has filed a statement

of non-opposition to the motion. Good cause appearing, the motion will be granted. Petitioner

will be directed to file, within thirty days after final disposition of his claims by the California

Supreme Court, a motion to lift the stay and, as appropriate, a motion for leave to file an

amended petition together with a proposed amended petition containing all of the claims

petitioner seeks to raise in this action.

On December 22, 2005, petitioner filed a motion for appointment of counsel and a

motion for leave to proceed in forma pauperis. There currently exists no absolute right to

appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th

Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of

the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. 

In the present case, the court does not find that the interests of justice would be served by the

appointment of counsel at the present time. Petitioner’s motion for appointment of counsel will

therefore be denied without prejudice.

Petitioner paid the filing fee for this action and there are at present no additional

costs associated with prosecution of this habeas corpus action in this court. Accordingly,

petitioner’s motion for leave to proceed in forma pauperis will be denied without prejudice to its

renewal, as appropriate, at a later stage of these proceedings. 

/////

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Finally, on July 8, 2005, petitioner filed a motion for bail or release on his own

recognizance. In view of the stay of this action, petitioner’s motion will be denied.

In accordance with the above, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to correct docket entry # 17 to reflect that the

petition described in that entry is a copy of a petition for writ of habeas corpus filed in the Yuba

County Superior Court;

2. Respondent’s September 8, 2005 motion to dismiss is deemed withdrawn.

3. Petitioner’s July 8, 2005 motion for bail or release on his own recognizance is

denied;

4. Petitioner’s December 22, 2005 motion for appointment of counsel is denied

without prejudice;

5. Petitioner’s December 22, 2005 motion for leave to proceed in forma pauperis

is denied without prejudice;

6. Petitioner’s December 22, 2005 motion for stay is granted;

7. This action is stayed until further order of court;

8. Not later than thirty days after final disposition of petitioner’s claims by the

California Supreme Court, petitioner shall file and serve a motion to lift the stay; and

9. The Clerk of the Court is directed to administratively close this case. 

DATED: February 27, 2006.

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muno1658.sty

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