Wilson v. Berghuis

Filing 14

ORDER denying 9 Motion to Extend Time for Filing Appeal; denying [10 and 13] Applications to Proceed In Forma Pauperis; denying without prejudice 11 Motion to Appoint Counsel. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION GERALD DEWAYNE WILSON, Petitioner, v. MARY BERGHUIS, Respondent. _______________________________/ ORDER DENYING PETITIONER'S MOTION FOR EXTENSION OF TIME FOR FILING FOR APPEAL, DENYING APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL, AND DENYING MOTION FOR COURT APPOINTMENT OF COUNSEL On December 8, 2009, Petitioner Gerald DeWayne Wilson filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 [Dkt. #1]. Now before the Court are Petitioner's Motion for Extension of Time for Filing for Appeal [Dkt. #9], application for leave to proceed in forma pauperis on appeal [Dkt. #s 10 and 13], and Motion for Court Appointment of Counsel [Dkt. # 11], all of which were filed on July 12, 2010. Federal Rule of Appellate Procedure 4(a) governs the time for filing appeals from judgments or orders in civil actions. Petitioner has filed a motion for an extension of time to file an appeal, but does not specify what it is he seeks to appeal. The Court has not yet addressed the merits of the petition nor issued any other appealable order. Therefore, the Court will deny Petitioner's motion for extension of time for filing for appeal. The Court will also deny Petitioner's application for leave to proceed in forma pauperis on appeal. Also before the Court is Petitioner's Motion for Appointment of Counsel. There is no constitutional right to counsel in habeas proceedings. Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Civil No. 1:09-CV-14787 Honorable Thomas L. Ludington

Cir. 1987). The decision to appoint counsel for a federal habeas petitioner is within the discretion of the court and is required only where the interests of justice or due process so require. Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986); 18 U.S.C. § 3006A(a) (2)(B) (A habeas petitioner may obtain court-appointed representation at any stage of the case "[w]henever the United States magistrate judge or the court determines that the interests of justice so require."). Petitioner has submitted his petition setting forth his claims. Neither an evidentiary hearing nor discovery are necessary at this time, and the interests of justice do not require appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); Rules 6(a) and 8(c) of the Rules Governing § 2254 Cases. Accordingly, it is ORDERED that Petitioner's Motion for Extension of Time for Filing for Appeal [Dkt. # 9] is DENIED. It is further ORDERED that Petitioner's application to proceed in forma pauperis on appeal [Dkt. #s 10 and 13] is DENIED. It is further ORDERED that Petitioner's Motion for Court Appointment of Counsel [Dkt. # 11] is DENIED WITHOUT PREJUDICE. The Court will bear in mind the request if, upon further review of the pleadings and state court record, the Court determines that appointment of counsel is necessary. Petitioner need not file an additional motion concerning this issue. s/Thomas L. Ludington THOMAS L. LUDINGTON United States District Judge Dated: March 7, 2011

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PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on March 7, 2011 s/Tracy A. Jacobs TRACY A. JACOBS

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