(HC)Stephen v. Matterson

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

STEPHEN RUSSELL FEGAN, Case No. 1:23-cv-01520-SKO (HC)

Petitioner, ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND v. EXTENSION OF TIME

GISELLE MATTERSON, [Docs. 12, 13] Respondent.

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 27, 2023, the Court dismissed the petition with leave to file an amended petition. (Doc. 7.) On October 30, 2023, Petitioner filed a notice of interlocutory appeal. (Doc. 8.) The appeal was then processed to the Ninth Circuit Court of Appeals. (Doc. 9.) On November 9, 2023, Petitioner filed a motion for appointment of counsel and a motion for extension of time to file an amended petition. (Docs. 12, 13.) There currently exists no absolute right to appointment of counsel in habeas proceedings. See, e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir. 1984). However, Title 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of counsel at any stage of the case if "the interests of justice so require." See Rule interests of justice require the appointment of counsel at the present time. Petitioner requests an extension of time to file an amended petition. Generally, the filing of a notice of appeal divests the district court of jurisdiction with respect to all matters involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam); Bermudez v. Duenas, 936 F.2d 1064, 1068 (9th Cir. 1991). Petitioner is advised that his interlocutory appeal divested this Court of jurisdiction to proceed in this matter until such time as the Ninth Circuit Court of Appeals resolves the appeal and remands the action to this Court for further proceedings. Thus, Petitioner’s motion is dismissed with leave to renew once the case is remanded to this Court. Accordingly, IT IS HEREBY ORDERED that Petitioner's motions for appointment of counsel and extension of time are DENIED. IT IS SO ORDERED.

Dated: November 13, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE