(HC) Luna v. Phillips

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA BENITO JULIAN LUNA, Case No. 2:24-cv-1686-JDP (P) 12 Petitioner, 13 v. ORDER B. PHILIPS, 15 Respondent.

17 Petitioner has requested the appointment of counsel and an extension of time to file an amended petition. ECF No. 12. 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).

20 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.

24 The court screened petitioner’s initial petition on November 20, 2024. ECF No. 6. There, the court found that the petition did not state a claim and provided petitioner with thirty days to file either an amended petition or notice of voluntary dismissal. Id. On December 30, 2024, petitioner filed a motion for a sixty-day extension of time, which the court granted. ECF Nos. 7 & 8. When petitioner did not timely file an amended petition, on March 24, 2025, the court | ordered petitioner to show cause for why this action should not be dismissed for this failure to | state claim, failure to prosecute, and failure to comply with court orders. ECF No. 9. On April | 4, 2025, petitioner filed a motion for a ninety-day extension of time; petitioner was granted forty- | five days to file an amended petition. ECF Nos. 10 & 11. In that order, the court informed | petitioner that no further extensions would be granted and a failure to comply with the order | would result in a recommendation that this action be dismissed. ECF No. 11. Petitioner now | seeks a third extension of time. ECF No. 12. In light of petitioner’s pro se status, he will be | afforded a final opportunity to file an amended petition within twenty-one days. Should he fail to | do so, I will recommend this action be dismissed.

10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Petitioner’s request for appointment of counsel, ECF No. 12, is DENIED without 12 prejudice; 13 2. Petitioner’s request for an extension of time, ECF No. 12, is GRANTED. Petitioner shall 14 file an amended petition within twenty-on days. Should petitioner file to file an amended 15 petition within twenty-one days, I will recommend that this action be dismissed for failure 16 to state a claim, failure to prosecute, and failure to comply with court orders.

17 | IT IS SO ORDERED.

18 / | Dated: _ July 10, 2025 sa JEREMY D. PETERSON 20 UNITED STATES MAGISTRATE JUDGE