McGrowan v. Curtin

Filing 49

ORDER granting 48 MOTION to Appoint Counsel filed by Demetric McGowan and 47 MOTION to Withdraw as Counsel. Attorney S. Allen Early, III terminated. Petitioner may file supplemental brief within 90 days. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEMETRIC MCGOWAN,
Petitioner,

Civil No. 2:09-CV-14539
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
SHERRY BURT,

Respondent,
____________________________________/
OPINION AND ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL,
GRANTING THE MOTION TO APPOINT COUNSEL FOR PETITIONER, AND
SETTING NEW DEADLINES FOR THE PARTIES TO FILE SUPPLEMENTAL
PLEADINGS
This Court granted the petition for writ of habeas corpus, finding that
petitioner was denied the effective assistance of trial counsel when his attorney
gave him, before trial, inaccurate advice that the sentencing guidelines range
after trial would be 45–93 months (3 3/4 years–8 3/4 years) when in fact it was
78–195 month (6 1/2 years–16 1/4 years), which caused petitioner to reject the
prosecutor’s plea bargain offer and receive a much greater sentence after being
convicted at trial, namely, 195 months to forty years in prison. McGowan v. Burt,
No. 43 F. Suppp. 2d 761 (E.D. Mich. 2014).
The Sixth Circuit reversed the Court’s decision and remanded the matter to
this Court for consideration of petitioner’s remaining claims. McGowan v. Burt,
788 F.3d 510 (6th Cir. 2015); cert. Den. 136 S. Ct. 415 (2015).
1

On December 11, 2015, the Court reopened the petition to adjudicate the
remaining claims. The Court set deadlines for the parties to file supplemental
pleadings.
Before the Court is retained counsel S. Allen Early’s motion to withdraw as
counsel and petitioner’s motion for the appointment of counsel. For the reasons
that follow, the motions are GRANTED. The Court will also new deadlines for the
parties to file supplemental pleadings.
Mr. Early in his motion to withdraw as counsel indicates that he was
scheduled to undergo major surgery for spinal fusion on December 30, 2015 and
will be unable to comply with the Court’s deadline for expeditious briefing of this
matter for a number of months.
Under the Model Rules of Prof'l Conduct R. 1.16(b):
[A] lawyer may withdraw from representing a client if:...
(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden
on the lawyer or has been rendered unreasonably difficult by the
client; or
(7) other good cause for withdrawal exists.
Although these rules do not guarantee a right to withdraw, “they confirm
that withdrawal is presumptively appropriate where the rule requirements are
satisfied.” Brandon v. Blech, 560 F.3d 536, 537 (6th Cir. 2009).
If an attorney “feels he will be unable for health reasons or otherwise, to
2

adequately represent his client he has the duty to withdraw from the case.” Green
v. Forney Engineering Co., 589 F.2d 243, 247–48 (5th Cir.1979). In light of the
fact that Mr. Early has undergone extensive surgery and may have a lengthy
recovery period which may impede his ability to adequately represent his client,
the motion to withdraw is granted.
The Court will also grant petitioner’s motion to appoint counsel. 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). Counsel may be
appointed, in exceptional cases, for a prisoner appearing pro se in a habeas
action. Lemeshko v. Wrona, 325 F. Supp. 2d 778, 788 (E.D. Mich. 2004). The
exceptional circumstances justifying the appointment of counsel to represent a
prisoner acting pro se in a habeas action occur where a petitioner has made a
colorable claim, but lacks the means to adequately investigate, prepare, or
present the claim. Id.
This Court already granted petitioner habeas relief on a claim in which he
was represented by retained counsel. When this Court reopened the case,
petitioner was still represented by Mr. Early. Petitioner no doubt expected that
his retained counsel would be able to file a supplemental brief on his behalf. In
light of the fact that petitioner already relied on counsel to advance his original
claims, the Court feels that it would be in the interests of justice to appoint
3

counsel to assist petitioner with the preparation of supplemental pleadings.
This Court will also grant petitioner’s new counsel ninety days from the
date of his or her appointment to file any supplemental brief that petitioner may
wish to submit in support of his remaining claims. Respondent shall than have
sixty days after the filing of any supplemental brief by petitioner or the expiration
of the ninety day period to do so to file a response brief, if he so chooses.
ORDER
IT IS HEREBY ORDERED that the motion to withdraw as counsel [Dkt. #
47] is GRANTED.
IT IS FURTHER ORDERED that the motion for the appointment of counsel
[Dkt. # 48] is GRANTED. IT IS ORDERED That the Federal Defender’s Office is
appointed to represent petitioner in the above entitled matter.
IT IS FURTHER ORDERED that petitioner’s new counsel shall have 90
days from the date of this order to file any supplemental brief that addresses the
remaining claims, if petitioner so chooses. Respondent shall have 60 days from
the filing of petitioner’s brief or the expiration of the 90 day time period for
submitting a supplemental brief to file a response, if he so chooses.

Dated: May 2, 2016

s/Arthur J. Tarnow
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

4