Marion v. Berghuis

Filing 9

ORDER denying 8 Motion to Appoint Counsel and Granting a Thirty Day Extension to Re-File Petition for Writ of Habeas Corpus. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN MARION,
Petitioner,
v.

Civil No. 2:12-CV-13127
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

MARY BERGHUIS,
Respondent,
____________________________________/
ORDER DENYING THE MOTION FOR THE APPOINTMENT OF COUNSEL
AND GRANTING PETITIONER A THIRTY DAY EXTENSION OF TIME TO
RE-FILE HIS PETITION FOR WRIT OF HABEAS CORPUS
Allen Marion, (“Petitioner”), confined at the Brooks Correctional Facility in
Muskegon Heights, Michigan, filed a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging his convictions for second degree murder, felony firearm,
and possession of a firearm by a felon. The Court granted Petitioner’s motion to stay the
proceedings and hold the petition in abeyance so that Petitioner could exhaust additional
claims with the state courts. The stay was conditioned upon Petitioner filing a postconviction motion within 60 days of the Court’s order and returning to this Court within
60 days of the conclusion of the state post-conviction proceedings. The Court also
administratively closed the case. Marion v. Berghuis, No. 2:12-CV-13127; 2012 WL
3150857 (E.D. Mich. August 2, 2012).
Petitioner filed a motion for the appointment of counsel to assist him with re-filing

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his petition for writ of habeas corpus with this Court. Petitioner indicates in a letter
attached to the motion that he wishes to lift the stay after counsel is appointed to represent
him but has not formally requested that the stay be lifted.
The Court denies the motion for the appointment of counsel. There is no
constitutional right to counsel in habeas proceedings. Cobas v. Burgess, 306 F. 3d 441,
444 (6th Cir. 2002). 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). Petitioner’s case
is currently closed. Petitioner would need to reopen the case in order to proceed with a
motion for the appointment of counsel. See e.g. Adderly v. Zickefoose, 504 Fed. Appx. 78,
80 (3rd Cir. 2012). Petitioner does not need counsel to assist him with preparing a motion
to reopen the case because such a motion would not be complicated to prepare or file. See
Lee v. Utah, 535 Fed. Appx. 751, 753 (10th Cir. 2013). The Court denies the motion for
appointment of counsel without prejudice to its renewal upon re-activation of the case.
See Mitchell v. McCaughtry, 291 F. Supp. 2d 823, 834 (E.D. Wis. 2003).
Petitioner indicates in his letter dated July 1, 2014 that he exhausted his state court
remedies and had fifty six days left from that date to re-file his petition for writ of habeas
corpus, or until August 26, 2014. Because Petitioner’s motion for the appointment of
counsel was pending during part of this time, the Court grants Petitioner an additional
thirty day enlargement of time from August 26, 2014 to re-file his habeas petition with
this Court and will extend the deadline for filing the petition to September 26, 2014. A
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federal district court has the power to extend the stay of a habeas petition, particularly
where the respondent does not oppose the extension of the stay. See e.g. Roberts v.
Norris, 415 F.3d 816, 819 (8th Cir. 2005).
The Court DENIES the motion for appointment of counsel [Court Dkt. # 8]
without prejudice.
The Court further grants Petitioner a thirty day enlargement of time to re-file his
habeas petition with the Court. Petitioner has until September 26, 2014 to re-file his
petition for writ of habeas corpus.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: August 4, 2014
The undersigned certifies that a copy of this
document was served on the attorneys of record
and Allen Marion by electronic means or U.S.
Mail on August 4, 2014.
S/Carol A. Pinegar
Deputy Clerk

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