Cohen v. Brewer

Filing 10

ORDER Denying as Moot Petitioner's 3 Motion to Waive Fees and Denying Without Prejudice 4 Motion to Appoint Counsel. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
James Cohen, Jr.,
Petitioner,
v.

Case No. 17-cv-10976
Judith E. Levy
United States District Judge

Shawn Brewer,
Respondent.

Mag. Judge Elizabeth A. Stafford

________________________________/
ORDER DENYING AS MOOT PETITIONER’S MOTION TO
WAIVE FEES [3] AND DENYING WITHOUT PREJUDICE
MOTION TO APPOINT COUNSEL [4]
Petitioner James Cohen, Jr., a state prisoner at the G. Robert
Cotton Correctional Facility in Jackson, Michigan, has filed a pro se
petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Currently before the Court are Petitioner’s motions to waive the
fees for this action and to appoint counsel. (Dkts. 3, 4.)
Motion to Waive Fees
Petitioner has moved to have the Court waive the fees for this
action. He also filed an application to proceed in forma pauperis (Dkt. 2),

which Magistrate Judge R. Steven Whalen granted on April 4, 2007.
(Dkt. 7.)
Accordingly, Petitioner’s motion to waive the fees (Dkt. 3) for this
action is DENIED AS MOOT.
Motion for Appointment of Counsel
Petitioner seeks appointment of counsel on the basis that the issues
in his petition are complex, and that he was denied effective assistance
of trial and appellate counsel in state court.
There is no constitutional right to appointment of counsel in a
collateral attack on a state-court conviction. Pennsylvania v. Finley, 481
U.S. 551, 555 (1987). “[T]he right to appointed counsel extends to the
first appeal of right, and no further.” Id. Thus, “there is no constitutional
right to counsel in habeas proceedings.” Post v. Bradshaw, 422 F.3d 419,
425 (6th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 752–53
(1991)).
“[A]ppointment of counsel in a civil proceeding . . . is justified only
in exceptional circumstances. To determine whether these exceptional
circumstances exist, courts typically consider the type of case and the
ability of the plaintiff to represent himself.” Lanier v. Bryant, 332 F.3d
2

999, 1006 (6th Cir. 2003) (quotation marks and citations omitted).
“Appointment of counsel in a habeas proceeding is mandatory only if the
district court determines that an evidentiary hearing is required.” Losee
v. Vasbinder, Case No. 07-cv-14421, 2009 WL 368104, at *1 (E.D. Mich.
Feb. 12, 2009) (citing Lemeshko v. Wrona, 325 F. Supp. 2d 778, 787 (E.D.
Mich. 2004).
Petitioner has filed a petition for a writ of habeas corpus, arguing
he is entitled to relief on four grounds. (Dkt. 1.) He included a number
of exhibits, and the petition and materials total 166 pages. Petitioner
therefore has the means and ability to present his claims to this Court.
Further, no responsive briefs or Rule 5 materials have been filed, so the
Court cannot determine whether an evidentiary hearing should be held.
Thus, the interests of justice do not, at this time, require appointment of
counsel.

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Accordingly, Petitioner’s motion for appointment of counsel (Dkt. 4)
is DENIED WITHOUT PREJUDICE. Petitioner may renew the request
for counsel after the responsive briefs and Rule 5 materials have been
filed.
IT IS SO ORDERED.
Dated: July 19, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 19, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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