Clay v. Bergh

Filing 14

ORDER denying 13 Petitioner's Motion to Appoint Counsel. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MAURICE CLAY,
Petitioner,
Case No. 11-13868

v.
DAVID BERGH,
Respondent.
/

ORDER DENYING PETITIONER’S MOTION TO APPOINT COUNSEL
Maurice Clay was convicted in a Michigan court of raping at knife-point a college
student, in her car, the night of December 27, 1989. He exhausted his appeals in state
court, he petitioned in federal court for a writ of habeas corpus, and he now moves for
an appointment of counsel to assist with his petition.
Clay says he needs counsel primarily because of the “complex nature of [this]
litigation.” (Dkt. # 13 at 1.) It is hard to see the complexity. DNA from a semen sample
attached Clay to the victim. Clay claimed that he and the victim had a consensual affair
the night before the victim was assaulted, but the victim denied the claim, and the jury
had several good reasons to believe her rather than Clay.
Clay says he needs help “obtaining undisclosed records,” (Dkt. # 13 at 1), but he
provides no good reason to believe the State has withheld something. He says
additional “depositions from [police] officers and [the] prosecution’s office” “may be
required,” (id. at 2), but that is unlikely. See 28 U.S.C. § 2254(d)(1), (e)(2); Cullen v.
Pinholster, 131 S.Ct. 1388, 1401 (2011). He says a different expert would conclude the

semen was from the night before the assault, but that is pure, and dubious, speculation.
See People v. Clay, 2008 WL 4148972, *4 (Mich. Ct. App. 2008).
The petition appears, at present, to include no exceptional element warranting an
appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); Lemeshko v. Wrona, 325
F.Supp.2d 778, 787-88 (E.D. Mich. 2004). Accordingly,
IT IS ORDERED that the motion to appoint counsel [Dkt. # 13] is DENIED.
Counsel will be appointed by the court, acting on its own, if further review reveals that
an appointment is required.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 5, 2013

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 5, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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