Roberts v. Allison

Opinion

ANTWAREN ROBERTS, Case No.: 3:22-cv-00251-LL-BGS

Petitioner, ORDER DISMISSING CASE v. WITHOUT PREJUDICE AND DENYING MOTION FOR APPOINTMENT OF COUNSEL Respondent. WITHOUT PREJUDICE [ECF No. 2]

Petitioner, a state prisoner proceeding pro se,1 has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. However, Petitioner has failed to pay the $5.00 filing fee and/or move to proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the instant habeas action is subject to dismissal without prejudice. See Rule 3(a), 28 U.S.C. § 2254. Petitioner has also filed a request for the appointment of counsel to represent him in 1 In reviewing Petitioner’s Petition, the Court is mindful that “[a] document filed pro se is to be liberally construed … and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. federal habeas corpus proceeding. ECF No. 2. District courts have statutory authority appoint counsel in a federal habeas case when a petitioner is financially eligible and “the court determines that the interests of justice so require.” See 18 U.S.C. §3006A(a)(2)(b). However, the Ninth Circuit has held that “[iJndigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citations omitted). Petitioner asserts he ‘does not have the financial resources to retain counsel,’’ ECF No. 2 at 2, but the declaration/exhibit cited in support of this contention does not provide any financial information other than again generally claiming indigency and stating: “I am without the funds necessary to retain counsel to assist me in this matter.” ECF No. 1-7 at 2. Nor has Petitioner made a request to proceed in forma pauperis in the instant action. Given the absence of any evidence demonstrating his indigency, Petitioner fails to show is financially eligible for appointed counsel. As such, the Court DENIES the motion for appointment of counsel without prejudice to renewing this request at a later time. For the reasons discussed above, the Court DISMISSES the case without prejudice failure to satisfy the filing fee requirement and DENIES Petitioner’s motion for appointment of counsel [ECF No. 2] without prejudice. If Petitioner wishes to proceed with this case, he must submit, no later than April 26, 2022, a copy of this Order with the $5.00 fee or adequate proof of his inability to pay the fee. The Clerk of Court shall send a {blank Southern District of California In Forma Pauperis Application to Petitioner along with a copy of this Order. DATED: March 9, 2022 HON. LINDA LOPEZ United States District Judge