Kennard v. Trierweiler

Filing 16

ORDER (1) Denying Without Prejudice Petitioner's 11 and 12 Motions for Appointment of Counsel and for Oral Argument and (2) Directing Respondent to File a Response to Petitioner's 15 Motion for an Evidentiary Hearing. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RODNEY CLARENCE KENNARD,
Petitioner,
Case No. 16-cv-12523
Hon. Matthew F. Leitman

v.
TONY TRIERWEILER,
Respondent.
___________________________/

ORDER (1) DENYING WITHOUT PREJUDICE PETITIONER’S
MOTIONS FOR APPOINTMENT OF COUNSEL (ECF # 11) AND FOR
ORAL ARGUMENT (ECF #12) AND (2) DIRECTING RESPONDENT TO
FILE A RESPONSE TO PETITIONER’S MOTION FOR AN
EVIDENTIARY HEARING (ECF #15)
Petitioner Rodney Clarence Kennard is a state prisoner at the St. Louis
Correctional Facility in St. Louis, Michigan. On July 5, 2016, Kennard filed a pro
se petition for a writ of habeas corpus. (See ECF #1.) In the Petition, Kennard
challenges his state-court conviction for first-degree, premeditated murder, Mich.
Comp. Laws § 750.316(1)(a). The Michigan Court of Appeals affirmed Kennard’s
conviction, and on May 24, 2016, the Michigan Supreme Court denied leave to
appeal.
In the Petition, Kennard contends that: (1) he was denied due process of law
by the lengthy delay between the offense and his arrest; (2) the trial court denied him
his right to present a defense when it denied his request for funds to hire experts, and
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his trial counsel rendered ineffective assistance when counsel failed to renew that
request; (3) the trial court denied him a fair trial when it refused to grant him and his
co-defendant separate trials or separate juries; (4) the trial court abused its discretion
and deprived him of his right of confrontation when it permitted a witness’s prior
recorded testimony to be read to the jury; (5) the trial court violated his right to
confront his accuser when it admitted hearsay in the form of a witness’s testimony
from the preliminary examination; (6) the cumulative effect of the errors at his trial
deprived him of due process; (7) his trial counsel rendered ineffective assistance
when counsel failed to present impeachment evidence and failed to recall a
prosecution witness; (8) the prosecutor committed misconduct when the prosecutor
introduced false testimony at trial; (9) the trial court abused its discretion and
deprived him of his right to confront witnesses when it limited his questioning of an
important prosecution witness; (10) the trial court should have granted a mistrial due
to the jury’s inconsistent verdict; and (11) he was denied counsel at a critical stage
of the proceedings when his counsel refused to investigate the case and refused to
object to the prosecutor’s misconduct and to the court’s failure to control the
proceedings. (See Petition, ECF #1.) Respondent insists that Kennard is not entitled
to habeas relief on any of his claims. (See Response Br., ECF #10.)
On November 17, 2016, Kennard filed two motions with the Court: (1) a
motion to appoint counsel (see ECF #11) and for oral argument (see ECF #12). On

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February 7, 2017, Kennard filed a third motion for an evidentiary hearing. (See ECF
#15.) Respondent has not filed a response to any of Kennard’s motions. For the
reasons stated below, the motions for appointment of counsel and for oral argument
are denied without prejudice, and Respondent is ordered to file a response to
Kennard’s motion for an evidentiary hearing within twenty-one days.
I
A
In his motion for appointment of counsel, Kennard claims that he is unable to
retain counsel, that his claims are complex and require the expertise of counsel, and
that he has no direct access to the prison law library. (See ECF #11.) Kennard also
insists that he is reliant on a legal writer to prepare his documents, that he has a
limited education and no knowledge of the law, and that the ends of justice would
be served by appointment of counsel. (See id.)
Prisoners have no constitutional right to counsel in a collateral attack on their
convictions. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Furthermore,
“habeas corpus is a civil proceeding,” Browder v. Dir., Dep’t of Corr. of Illinois,
434 U.S. 257, 269 (1978), and the “appointment of counsel in a civil proceeding …
is justified only in exceptional circumstances.” Lanier v. Bryant, 332 F.3d 999, 1006
(6th Cir. 2003) (affirming order denying prisoner’s motion to appoint counsel in civil
action).

When determining whether exceptional circumstances exist, “courts

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typically consider ‘the type of case and the ability of the plaintiff to represent
himself.’” Id. (quoting Archie v. Christian, 812 F.2d 250, 253 (5th Cir. 1987)).
Here, Kennard has represented himself ably in this action, and the Court is not
persuaded that the appointment of counsel is necessary or appropriate at this time.
Therefore, Kennard’s motion to appoint counsel (ECF #11) is DENIED
WITHOUT PREJUDICE. The Court will reconsider Kennard’s request for the
appointment of counsel if the Court subsequently determines that an evidentiary
hearing is necessary.
B
In his motion for oral argument, Kennard argues that oral argument would
assist the Court in deciding the interesting questions presented in the Petition. (See
ECF #12.) The legal arguments, however, are adequately presented in the pleadings,
and the Court is not yet persuaded that oral argument is necessary. Accordingly,
Kennard’s motion for oral argument (ECF #12) is DENIED WITHOUT
PREJUDICE. The Court will reconsider Kennard’s motion for oral argument if an
evidentiary hearing becomes necessary.
C
In his third and final motion, Kennard seeks an evidentiary hearing on any
facts in dispute. (See ECF #15.) He contends that the state appellate court denied
his motion to remand his case to develop a factual record on claims one through six

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and that his other claims were not decided on the merits. (See id.) Although the
State urges the Court to deny any requests for relief, including any motions for an
evidentiary hearing or oral argument, (see Resp. Br., ECF #7 at Pg. ID 218, 222), it
has not filed a formal answer to Kennard’s motion. The Court would benefit from
such a response before ruling on the motion. Accordingly, the Court ORDERS
Respondent to file a response to Kennard’s motion for an evidentiary hearing within
twenty-one (21) days of the date of this Order.
II
For the reasons given above, IT IS HEREBY ORDERED THAT (1)
Kennard’s motions to appoint counsel and for oral argument (ECF #11 and #12) are
DENIED WITHOUT PREJUDICE and (2) Respondent shall file a response to
Kennard’s motion for an evidentiary hearing (ECF #15) within twenty-one days.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: May 11, 2017
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on May 11, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]
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