Hanserd v. Woods

Filing 18

ORDER Denying Petitioner's 16 Motions for Evidentiary Hearing and Appointment of Counsel. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCUS HANSERD, #440115,
Petitioner,

Case No. 16-cv-11099
Hon. Matthew F. Leitman

JEFFREY WOODS,
Respondent.
________________________________/
ORDER DENYING PETITIONER’S MOTIONS
FOR EVIDENTIARY HEARING AND
APPOINTMENT OF COUNSEL (ECF #16)
Michigan prisoner Marcus Hanserd (“Petitioner”) has filed a pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal
proceedings. Petitioner was convicted of first-degree murder, carjacking, felon in
possession of a firearm, carrying a dangerous weapon with unlawful intent, and four
counts of possession of a firearm during the commission of a felony following a jury
trial in the Saginaw County Circuit Court. He was sentenced, as a second habitual
offender, to life imprisonment without parole on the murder conviction, a concurrent
term of 28 years 8 months to 40 years imprisonment on the carjacking conviction,
concurrent terms of 3 years 11 months to 7 years 6 months on the felon in possession
and dangerous weapon convictions, and concurrent terms of 2 years imprisonment

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on each of the felony firearm convictions, to be served consecutively to the other
sentences, in 2011.
In his initial petition, he raises claims concerning the sufficiency of the
evidence, the admission of other acts evidence and expert testimony, and the
effectiveness of trial counsel relative to the failure to call witnesses.

In a

supplemental petition, he raises a claims concerning the effectiveness of trial counsel
relative to the pre-trial identification procedures. Respondent has filed an answer to
the initial petition and the state court record, but has not yet filed an answer to the
supplemental petition. That answer is due in July, 2017. The matter is now before
the Court on Petitioner’s motions for evidentiary hearing and appointment of
counsel.
Given that Respondent has not yet filed an answer to the supplemental
petition, Petitioner’s request for an evidentiary hearing under Rule 8 or under 28
U.S.C. § 2254(e) is premature. Accordingly, the Court DENIES WITHOUT
PREJUDICE Petitioner’s motion for an evidentiary hearing. The Court will bear
in mind Petitioner’s request should further development of the record be necessary
for the proper resolution of this matter. Petitioner need not file another motion as to
this issue.

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Petitioner also seeks the appointment of counsel to assist him with this case.
A petitioner has no absolute right to be represented by counsel on federal habeas
review. Abdur-Rahman v. Michigan Dept. of Corr., 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. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (quoting United States v. Madden,
352 F.2d 792, 793 (9th Cir. 1965)).
The Court finds that the interests of justice do not require the appointment of
counsel at this time. See 18 U.S.C. § 3006A(a)(2)(B); Rule 6(a) and 8(c); 28 U.S.C.
foll. § 2254.

Accordingly, the Court DENIES WITHOUT PREJUDICE

Petitioner’s motion for appointment of counsel. The Court will bear in mind
Petitioner’s request if, following receipt of the supplemental pleadings and a more
detailed review of this case, the Court finds that appointment of counsel is necessary.
Petitioner need not file another motion as to this issue.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: May 22, 2017

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on May 22, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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