(HC) Bailey v. St. Andre

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOHNEL M. BAILEY, Case No. 2:23-cv-01228-TLN-JDP (HC) 12 Petitioner, ORDER 13 v. DENYING PETITIONER’S MOTION TO APPOINT COUNSEL ROB ST. ANDRE, ECF No. 15 15 Respondent.

17 On November 7, 2023, respondent filed a motion to dismiss. ECF No. 13. When petitioner failed to timely file an opposition or statement of non-opposition, I issued an order to show cause for why this action should not be dismissed for petitioner’s failure to prosecute. ECF No. 14. Petitioner has filed a response to the order to show cause, along with a motion for the appointment of counsel. ECF No. 15.

22 Petitioner explains that he is relying on a book entitled “The California Prisoners Handbook,” but that the book does not provide for how to respond to a motion to dismiss. Id. at 1. While I understand that petitioner faces challenges as a pro se litigant, his status does not excuse his obligation to file either an opposition or a statement of non-opposition to respondent’s motion to dismiss. However, in light of his pro se status, I will allow petitioner an additional thirty days to file a response to respondent’s motion.

28 Petitioner has additionally requested the appointment of counsel. There is no absolute | right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 | (9th Cir. 1996). And while 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, | I do not find that the interests of justice would be served by the appointment of counsel presently.

5 Accordingly, IT IS HEREBY ORDERED: 6 1. Petitioner’s request for appointment of counsel, ECF No. 15, is denied.

7 2. Petitioner is directed to file an opposition or statement of non-opposition to || respondent’s motion to dismiss within thirty days of this order’s issuance.

9 3. Failure to comply with this order may result in the recommendation that this matter be | dismissed.

IT IS SO ORDERED.

13 ( 1 ow — Dated: _ March 12, 2024 Q——— 14 JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE