Burnside v. Campbell

Filing 23

ORDER denying 15 Motion to Appoint Counsel ; granting 18 Motion to Supplement Amended Petition ; denying 19 Motion for Summary Judgment; denying 20 Motion for Clarification. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AVERN LEE BURNSIDE,
Case Number: 2:16-CV-13358
HONORABLE VICTORIA A. ROBERTS

Petitioner,
v.
SHERMAN CAMPBELL,
Respondent.
/

ORDER
1)

DENYING PETITIONER’S MOTION FOR APPOINTMENT OF
COUNSEL (ECF NO. 15);

2)

GRANTING PETITIONER’S MOTION TO SUPPLEMENT
AMENDED PETITION (ECF NO. 18);

3)

DENYING PETITIONER’S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 19); AND

4)

DENYING PETITIONER’S MOTION FOR CLARIFICATION (ECF
NO. 20)

Petitioner Avern Burnside filed a pro se habeas corpus petition under 28 U.S.C. §
2254. Petitioner challenges his convictions for assault with intent to murder, Mich.
Comp. Laws § 750.83; carrying a concealed weapon, Mich. Comp. Laws § 750.227(2);
felon in possession of a firearm, Mich. Comp. Laws § 750.224f; discharging a weapon
from a vehicle, Mich. Comp. Laws § 750.234a; and possession of a firearm during the
commission of a felony, Mich. Comp. Laws § 750.227b. Now before the Court are

Petitioner’s Motion for Appointment of Counsel, Motion to Supplement Amended
Petition, Motion for Summary Judgment, and Motion for Clarification.
I.

Discussion
A.

Motion for Appointment of Counsel

Petitioner seeks the 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). “‘[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). 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.
B.

Motion to Supplement Amended Petition

Petitioner has filed a Motion to Supplement Amended Petition. Federal Rule of
Appellate Procedure Rule 15(a)(2) allows a party to amend a pleading by leave of court
and provides that the court “should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). Petitioner’s request to supplement his amended petition does not appear
to be made in bad faith or to be an attempt to delay the proceedings. The supplement to
the amended petition provides additional support and argument for the claims raised in
the amended petition. It does not raise additional claims for relief. Further, Respondent
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does not oppose the motion. The Court will grant the motion.
C.

Motion for Summary Judgment

A motion for summary judgment under Fed. R. Civ. P. 56 presumes the absence of
a genuine issue of material fact for trial. The Court must view the evidence and draw all
reasonable inferences in favor of the non-moving party, and determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). The “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive
determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)
(internal quotes omitted).
A fact is “material” if its resolution affects the outcome of the lawsuit. Lenning v.
Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). “Materiality” is
determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir.
2000). An issue is “genuine” if a “reasonable jury could return a verdict for the
nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d 1143, 1148
(6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual
disputes do not create genuine issues of material fact. St. Francis Health Care Centre v.
Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the “record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party,” there is no genuine issue of
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material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a
factual dispute which “is merely colorable or is not significantly probative” will not
defeat a motion for summary judgment which is properly supported. Kraft v. United
States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int’l Union, United Auto., Aerospace
and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th
Cir. 1999).
The party bringing the summary judgment motion has the initial burden of
informing the district court of the basis for its motion and identifying portions of the
record which demonstrate the absence of a genuine dispute over material facts. Mt.
Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir.
2002). The party opposing the motion then may not “rely on the hope that the trier of fact
will disbelieve the movant’s denial of a disputed fact” but must make an affirmative
showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
In this case, Petitioner has failed to satisfy the burden of identifying portions of the
record which demonstrate the absence of a genuine dispute over material facts. Mt.
Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir.
2002). Respondent’s answer to the first amended petition challenges the claims raised in
the petition and shows sufficient disagreement based upon case law and sound legal
reasoning that summary judgment is not appropriate. Thus, the Court shall deny this
motion.
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D.

Motion for Clarification

Finally, Petitioner has filed a Motion for Clarification. A review of the motion
shows that he is not seeking clarification from the Court. Instead, he seeks to clarify for
the Court the claims raised in the habeas proceeding. The Court already has before it
Petitioner’s first and second amended petitions, reply brief, and motion to supplement.
Further clarification is not needed and the motion will be denied.
II.

Order
For the reasons stated, the Court DENIES Petitioner’s Motion for Appointment of

Counsel (ECF No. 15), Motion for Summary Judgment (ECF No. 19), and Motion for
Clarification (ECF No. 20). The Court GRANTS Petitioner’s Motion to Supplement
Amended Petition (ECF No. 18).

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
DATED: February 13, 2018

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