Opinion
Case No. C09-1137-JCC.
January 14, 2010
ORDER
The Court, having reviewed Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Dkt. No. 1); the Report and Recommendation of United States Magistrate Judge Brian A. Tsuchida (Dkt. No. 21), to which there has been no timely objection; the governing law; and the balance of the record; does hereby ORDER:
1. The Court ADOPTS the Report and Recommendation (Dkt. No. 21);
2. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (Dkt. No. 1) is DENIED IN PART and DISMISSED with prejudice as to claims one, two and five;
3. An evidentiary hearing shall be conducted as to petitioner's claims that his trial lawyer was ineffective as set forth in claims three, four and six;
4. The matter is referred to United States Magistrate Judge Brian A. Tsuchida for further proceedings consistent with this Order;
5. If petitioner qualifies financially to have counsel appointed for the evidentiary hearing under 18 U.S.C. § 3006A, the Court will appoint counsel to represent him;
6. In order to determine whether petitioner qualifies for appointment of counsel, petitioner is directed to submit an application to proceed in forma pauperis within 30 days of the date this order is signed;
7. The Clerk of Court is directed to send copies of this Order to the parties and to Magistrate Judge Brian A. Tsuchida. The Clerk of Court shall also send to petitioner an application to proceed in forma pauperis.