Gough v. Garnett et al

Filing 24

ORDER denying 22 Motion for Reconsideration. See Order for details. Signed by Judge David R. Herndon on 7/12/2018. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAY A. GOUGH,
Petitioner,
vs.

Case No. 17-CV-00247-DRH-CJP

JASON C. GARNETT,
Respondent.

MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court on petitioner’s third reconsideration of
motion for appointment of counsel, which the Court construes as an appeal of a
magistrate decision (Doc. 22). Petitioner Ray A. Gough seeks to appeal the
September 1, 2017 Order issued by Magistrate Judge Proud denying his motion
to reconsider appointment of counsel (Doc. 21). Based on the following, the Court
affirms Magistrate Judge Proud’s September 1, 2017 Order and denies plaintiff’s
appeal.
Local Rule 73.1(a) of the Southern District of Illinois provides:
(a)

Appeal of Non-Dispositive Matters - 28 U.S.C. § 636(b)(1)(A)
Any party may appeal a Magistrate Judge’s order determining
a motion or matter within 14 days after issuance of the
Magistrate Judge’s order, unless a different time is prescribed
by the Magistrate Judge or a District Judge. The party shall file
with the Clerk of Court and serve on all parties a written
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request for an appeal which shall specifically designate the
order or part of the order that the parties wish the Court to
reconsider. A District Judge shall reconsider the matter and
shall set aside any portion of the Magistrate Judge’s order
found to be clearly erroneous or contrary to law. A District
Judge may also reconsider sua sponte any matter determined
by a Magistrate Judge under this rule.
Also, under FEDERAL RULE OF CIVIL PROCEDURE 72(a), the Court may modify
or reverse a magistrate judge on a non-dispostive issue upon a showing that the
magistrate judge’s decision is “clearly erroneous or contrary to the law.”
Specifically, Federal Rule of Civil Procedure 72(a) provides:
Nondispositive Matters. When a pretrial matter not dispositive
of a party’s claim or defense is referred to a magistrate judge to
hear and decide, the magistrate judge must promptly conduct
the required proceedings, and when appropriate, issue a written
order stating the decision. A party may serve and file objections
to the order within 14 days after being served with a copy. A
party may not assign as error a defect in the order not timely
objected to. The district judge in the case must consider timely
objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to the law.
A finding is clearly erroneous when “the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); Weeks v.
Samsung Heavy Indus. Co., 126 F.3d 926 (7th Cir. 1997).
In applying this “clear error” standard, a district judge may overturn a
decision “only if the district court is left with the definite and firm conviction that
a mistake has been made.” Weeks v. Samsung Heavy Indus. Co. Ltd., 126 F.3d

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926, 943 (7th Cir. 1997). If there are two permissible views, the reviewing court
will not overturn the decision solely because it would have chosen the other. The
clear error standard requires more than mere disagreement.
Accordingly, the Court will affirm Judge Proud’s decision unless his factual
findings are clearly erroneous or his legal conclusions are contrary to law.
Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); S.D. Ill. Local Rule 73.1(a). The
Court finds that petitioner has not established that Judge Proud’s Order
regarding appointment of counsel was clearly erroneous or contrary to the law in
this case.
As pointed out by Judge Proud, there is no constitutional right to counsel
in habeas corpus cases. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Lavin
v. Rednour, 641 F.3d 830, 833 (7th Cir. 2011); Pruitt v. Mote, 503 F.3d 647, 657
(7th Cir. 2007). 28 U.S.C. §2254(h) provides that the Court may appoint counsel
for an indigent habeas petitioner, and that the appointment of counsel in such a
case is governed by 18 U.S.C. §3006A. Neither statute creates a right to counsel;
rather, the statutes afford the court broad discretion to appoint counsel for a
petitioner seeking habeas relief. When presented with a request to appoint
counsel in a civil case, the court must make the following inquiries: “(1) has the
indigent plaintiff made a reasonable attempt to obtain counsel or been effectively
precluded from doing so; and if so, (2) given the difficulty of the case, does the
plaintiff appear competent to litigate it himself?” Santiago v. Walls, 599 F.3d 749,

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760-61 (7th Cir. 2010), citing Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir.
2007).
The Court finds that petitioner has not established that Judge Proud's
orders were clearly erroneous or contrary to the law in this case. Specifically, the
Court finds that petitioner’s pleadings are readily understandable and literate,
including his reply filed on January 11, 2018 (Doc. 23). Petitioner sets forth his
arguments very clearly and cites relevant law, which suggests he can handle the
case without counsel. Further, the Court agrees with Judge Proud that the issues
involved in this case are not overly complex, but in fact are straightforward, i.e.,
whether there is a federal constitutional right to a speedy trial in a civil
proceeding. Moreover, this Court has explained that habeas review is generally
limited to materials that were before the state court and that, except in unusual
circumstances, an evidentiary hearing is precluded. Cullen v. Pinholster, 131
S.Ct. 1388, 1398-99 (2011). In this case, no hearing will be necessary.
Simply because petitioner does not agree with the law, the disagreement is
not indicative of a mistake warranting reversal of the magistrate judge's prior
decisions. Therefore, based on the law of this Circuit, it is clear that good cause
has not been shown to warrant reversal of Judge Proud's Order (Doc. 21).
Petitioner failed to show that Judge Proud's decision was clearly erroneous or
contrary to law. Upon further review of the pleadings, as described above, the
Court

also

finds

petitioner's

objections

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to

be

meritless.

Thus

the

Court OVERRULES petitioner’s

objections

and AFFIRMS Magistrate

Judge

Proud's Order (Doc. 21).
IT IS SO ORDERED.

Judge Herndon
2018.07.12
15:07:57 -05'00'
United States District Judge

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