(HC) Nelson v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES DENERICK NELSON, JR., No. 2:23-cv-1438 KJN P 12 Petitioner, 13 v. ORDER 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 under 28 U.S.C. § 2254. Along with his petition, petitioner filed a motion to expand the record, 19 and subsequently filed a motion for appointment of counsel. 20 Motion to Expand 21 Petitioner’s motion to expand the record is not signed by petitioner. Parties proceeding 22 without counsel are required to sign all pleadings, motions, and other papers submitted to the 23 court for filing. Fed. R. Civ. P. 11(a). Further, it is unclear petitioner wishes to expand the 24 record. Rather, petitioner asks to add additional grounds by expanding the record if the petition is 25 not dismissed so that his other grounds may be admitted. (ECF No. 3.) But Rule 7 regarding 26 expansion of the record concerns factual evidence, not claims (or grounds) raised in the petition. 27 See Bracy v. Gramley, 520 U.S. 899, 904 (1997) (citing Rule 6(a), Rules Governing Section 2254 28 Cases, which provides that a court may authorize a petitioner to conduct discovery for good cause 1 and stating that good cause exists where “specific allegations before the court show reason to 2 believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is 3 entitled to relief.”) (citation and internal quotation marks omitted). A court considering a habeas 4 corpus petition is ordinarily limited to the state court record. See Cullen v. Pinholster, 563 U.S. 5 170, 180 (2011) (holding that “review under § 2254(d)(1) is limited to the record that was before 6 the state court that adjudicated the claim on the merits”). 7 Here, the instant petition includes four claims for relief. (ECF No. 1.) Petitioner’s motion 8 does not identify the “other grounds” he seeks to admit. Moreover, it is unclear whether 9 petitioner has exhausted state court remedies as to such proposed claims or “other grounds.” The 10 exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas 11 corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by 12 respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may not be 13 implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest 14 state court with a full and fair opportunity to consider all claims before presenting them to the 15 federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 16 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 17 Because petitioner’s motion is not signed and it is unclear what relief the motion seeks, 18 petitioner’s motion is denied without prejudice. 19 Motion for Counsel 20 Petitioner requested the appointment of counsel. There currently exists no absolute right 21 to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th 22 Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of 23 the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. 24 In the present case, the court does not find that the interests of justice would be served by the 25 appointment of counsel at the present time. 26 //// 27 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. 28 § 2254(b)(2). ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Petitioner’s motion (ECF No. 3) is denied without prejudice; and 3 2. Petitioner’s request for appointment of counsel (ECF No. 6) is denied without 4 || prejudice. 5 || Dated: August 4, 2023 Foci) Aharon 7 KENDALL J. NE imels1438.110+ UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28