1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KEVIN ROGER WILLIAMS, 

Petitioner, No. CIV 04-2032 FCD KJM P

vs.

TOM L. CAREY, Warden, ORDER AND

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

habeas corpus under 28 U.S.C. § 2254 together with a request to proceed in forma pauperis.

Examination of the in forma pauperis affidavit reveals that petitioner is unable to

afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis will be

granted. See 28 U.S.C. § 1915(a).

Petitioner challenges his Solano County conviction for drug offenses on two

grounds: “the trial court’s ruling denying petitioner’s motion to suppress evidence was contrary

to federal court rulings” and “the Court of Appeal opinion on direct appeal that there were

sufficient cause for a Terry search was flawed.” Petition (Pet.) at 5. The challenged decisions

were made after a hearing in the trial court on petitioner’s motion to suppress evidence and

briefing on the issue in the state Court of Appeal. Pet. at 3, 5, 6. 

Case 2:04-cv-02032-FCD-KJM Document 4 Filed 05/05/05 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

In Stone v. Powell, 428 U.S. 465, 494 (1976), the Supreme Court held “we

conclude that where the State has provided an opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground

that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 

Because petitioner had the opportunity in state court for full and fair litigation of his Fourth

Amendment claims, his attack on the state courts’ resolution of those issues has been rendered

irrelevant by Stone. Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990). 

Petitioner has requested the appointment of counsel. 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. 

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner’s request to proceed in forma pauperis is granted.

2. Petitioner’s request for the appointment of counsel is denied.

Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a

writ of habeas corpus be denied.

/////

/////

/////

/////

/////

/////

/////

/////

Case 2:04-cv-02032-FCD-KJM Document 4 Filed 05/05/05 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, petitioner may file written

objections with the court. The document should be captioned “Objections to Magistrate Judge's

Findings and Recommendations.” Petitioner is advised that failure to file objections within the

specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951

F.2d 1153 (9th Cir. 1991).

DATED: May 4, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2

will2032.156

Case 2:04-cv-02032-FCD-KJM Document 4 Filed 05/05/05 Page 3 of 3