Niemiec v. Burt
Filing
20
OPINION AND ORDER granting 17 Motion to Amend/Supplement; denying 18 Motion for immediate consideration and release on bond; denying 19 Motion to Appoint Counsel. Signed by District Judge George Caram Steeh (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN NIEMIEC,
Case Number: 2:13-CV-10180
Petitioner,
HON. GEORGE CARAM STEEH
v.
SHERRY BURT,
Respondent.
/
OPINION AND ORDER GRANTING PETITIONER’S MOTION
TO AMEND/SUPPLEMENT; DENYING MOTION FOR
IMMEDIATE CONSIDERATION AND RELEASE ON BOND; AND
DENYING MOTION FOR APPOINTMENT OF COUNSEL
Petitioner John Niemiec, a state prisoner confined at the Muskegon Correctional
Facility in Muskegon, Michigan, filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 and an application to proceed in forma pauperis. The Court determined
that Petitioner’s certificate of prisoner institutional/trust fund account activity showed he
had sufficient funds to pay the $5 filing fee and dismissed the petition without prejudice.
The Court also dismissed without prejudice Petitioner’s Motion for Release on Bond
Pending Appeal. Petitioner subsequently provided proof that the Michigan Department
of Corrections issued two separate $5 checks, which, for reasons unknown, the Court
did not receive. The Court reopened the proceedings.
On April 29, 2013, Petitioner filed a Motion to Amend/Supplement Petitioner’s
Motion for Bond Pending Appeal and an attached supplemental motion, entitled Motion
for Immediate Consideration – Petitioner’s Request to Remain Free on Bond Pending
-1-
His Petition for Writ of Habeas Corpus. The Court grants Petitioner’s request to
supplement his first motion for release on bond. The Motion for Immediate
Consideration seeks release on bond pending a decision on the merits of his habeas
petition. To receive bond, a habeas petitioner must show a substantial claim of law
based on the facts surrounding the petition and the existence of “some circumstance
making the [motion for bond] exceptional and deserving of special treatment in the
interests of justice.” Aronson v. May, 85 S. Ct. 3, 5 (1964); Dotson v. Clark, 900 F.2d
77, 79 (6th Cir. 1990). “There will be few occasions where a prisoner will meet this
standard.” Dotson, 900 F.2d at 79. Where the court finds no substantial claim that the
petitioner is confined in violation of the Constitution, it need not reach the issue of
whether exceptional circumstances exist which deserve special treatment in the interest
of justice. Id. Because a habeas petitioner “is appealing a presumptively valid state
conviction . . . it will indeed be the very unusual case where a habeas petitioner is
admitted to bail prior to a decision on the merits in the habeas case.” Lee v. Jabe, 989
F.2d 869, 871 (6th Cir. 1993). Petitioner’s motion fails to establish the existence of any
extraordinary and exceptional circumstances which merit release on bond. Therefore,
the Court denies the motion.
On May 13, 2013, Petitioner filed a Motion for Appointment of Counsel.
Petitioner has no absolute right to be represented by counsel on federal habeas corpus
review. See Abdur-Rahman v. Michigan Dept. of Corrections, 65 F.3d 489, 492 (6th
Cir. 1995); see also Wright v. West, 505 U.S. 277, 293 (1992) (citing Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987)). “‘[A]ppointment of counsel in a civil case is . . . a
matter within the discretion of the court. It is a privilege and not a right.’” Childs v.
-2-
Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). A habeas petitioner may obtain
representation at any stage of the case “[w]henever the United States magistrate or the
court determines that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
The Court determines that the interests of justice do not require appointment of counsel.
Accordingly, the Court GRANTS Petitioner’s “Motion to Amend/Supplement
Petitioner’s Motion for Release on Bond Pending Appeal” [dkt. # 17]. The Court
DENIES Petitioner’s “Motion for Immediate Consideration – Petitioner’s Request to
Remain Free on Bond Pending His Petition for Writ of Habeas Corpus” [dkt. # 18], and
Petitioner’s “Motion for Appointment of Counsel” [dkt. # 19].
SO ORDERED.
Dated: July 8, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 8, 2013, by electronic and/or ordinary mail and also on
John Niemiec #523576, Muskegon Correctional Facility
2400 S. Sheridan, Muskegon, MI 49442.
s/Barbara Radke
Deputy Clerk
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?