Clarke v. Stovall

Filing 53

ORDER Requiring Response to 41 Petition for Writ of Habeas Corpus, Response due: 9/29/2010; Denying 46 MOTION for Evidentiary Hearing, Granting 45 MOTION to Amend/Correct 1 Petition for Writ of Habeas Corpus, Denying 52 MOTION for Investiga tive Services/Private Investigator, Denying 50 MOTION for a Psychiatric Evaluation and a Post Trumatic Stress Disorder Expert Witness, Denying without prejudice 49 MOTION for Evidentiary Hearing, Granting 43 MOTION TO EXTEND time to file traverse, Denying 47 MOTION to Appoint Counsel. Signed by District Judge John Corbett O'Meara. (WBar)

Clarke v. Warren

Doc. 53

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

TINA MARIE CLARKE, Petitioner, v. MILLICENT WARREN, Respondent. ________________________________/ ORDER (1) DIRECTING RESPONDENT TO FILE AN ANSWER TO PETITIONER'S NEW CLAIMS, (2) GRANTING PETITIONER'S MOTIONS FOR AN ENLARGEMENT OF TIME AND TO AMEND CLAIM I, AND (3) DENYING PETITIONER'S MOTIONS FOR APPOINTMENT OF COUNSEL, FOR AN EVIDENTIARY HEARING, TO SUPPRESS HER STATEMENT, FOR A PSYCHIATRIC EVALUATION AND FOR APPOINTMENT OF AN EXPERT WITNESS, AND FOR APPOINTMENT OF AN INVESTIGATOR This is a habeas corpus proceeding filed a state prisoner pursuant to 28 U.S.C. § 2254. The habeas petition and amended petition challenge petitioner Tina Marie Clarke's convictions for first-degree murder, conspiracy to commit armed robbery, armed robbery, and two firearm offenses. Petitioner presented three claims in her initial petition filed in 2005 and five new claims in an amended petition, which was filed on May 18, 2009. See Dkt. #41. Respondent has addressed Petitioner's first three claims, but not the five new claims set forth in the 2009 petition. Respondent is ORDERED to file a supplemental answer addressing Petitioner's new claims that the trial court abused its discretion when denying Petitioner's motion for relief from judgment, that the pathologist perjured herself CASE NO. 05-60151 HON. JOHN CORBETT O'MEARA

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and was unqualified, and that Petitioner's trial and appellate attorneys were ineffective. The supplemental answer shall be due within twenty-one (21) days of the date of this order. Petitioner may file a reply brief limited to a total of twenty (20) pages, including any attachments. The reply brief shall be due within fourteen (14) days of the date of Respondent's supplemental answer. Pending before the Court are seven of Petitioner's motions. Her motion for enlargement of time to file a traverse to Respondent's answer [Dkt. #43] is GRANTED, and the traverse filed on October 21, 2009, [Dkt. #48] is accepted. The motion to amend habeas claim I [Dkt. #45] likewise is GRANTED, as it merely supplements Petitioner's argument regarding the sufficiency of the evidence. Petitioner alleges in her motion for appointment of counsel [Dkt. #47] that she is unable to retain counsel, that she has a learning disability, and that she needs assistance with filing motions. "[T]here is no constitutional right to counsel in habeas proceedings," Post v. Bradshaw, 422 F.3d 419, 425 (6th Cir. 2005), and Petitioner has adequately addressed the issues in her petition. She also has demonstrated competence in filing motions. Therefore, her motion for appointment of counsel [Dkt. #47] is DENIED. Petitioner seeks an evidentiary hearing [Dkt. #49] on her claims of ineffective assistance of trial and appellate counsel. This motion is DENIED without prejudice pending further review of the record. It will not be necessary for Petitioner to renew her motion. Petitioner's remaining motions seek (1) to suppress her custodial statement to the police [Dkt. #46], (2) a psychiatric evaluation and appointment of an expert witness 2

on post-traumatic stress disorder to determine whether she was competent to stand trial [Dkt. #50], and (3) appointment of a private investigator [Dkt. #52]. These motions suggest that Petitioner is attempting to re-try her case de novo. The writ of habeas corpus, however, "has limited scope; the federal courts do not sit to re-try state cases de novo but, rather, to review for violation of federal constitutional standards." Milton v. Wainwright, 407 U.S. 371, 377 (1972). Accordingly, the motions to suppress Petitioner's statement, for a psychiatric evaluation and appointment of an expert witness, and for appointment of a private investigator [Dkt. #46, 50, and 52] are DENIED.

s/John Corbett O'Meara United States District Judge Date: September 8, 2010

I hereby certify that a copy of the foregoing document was served upon the parties of record on this date, September 8, 2010, using the ECF system and/or ordinary mail. s/William Barkholz Case Manager

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