Baumgartner v. Shewalter

Filing 20

Amended Memorandum of Opinion and Order re 19 . The Court overrules Petitioner's objections to the Magistrate Judge's Memorandum and Order denying Petitioner's request for the appointment of counsel. Judge Benita Y. Pearson on 7/15/2011. Related document(s) 15 , 17 , 18 , 19 .(JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ELSEBETH BAUMGARTNER,
Petitioner,
v.
LaSHAUN EPPINGER, Warden,
Respondent.

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CASE NO. 1:10CV2810

JUDGE BENITA Y. PEARSON
AMENDED MEMORANDUM OF
OPINION AND ORDER
[Resolving ECF No. 18]

On December 13, 2010, Petitioner Elsebeth Baumgartner filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) alleging six grounds for relief which
challenge the constitutional sufficiency of her conviction and sentence. The case was referred to
Magistrate Judge Kenneth S. McHargh for a Report and Recommendation. On June 17, 2011,
Petitioner filed a Motion for Appointment of Counsel (ECF No. 15). The Magistrate Judge
entered a Memorandum and Order (ECF No. 17) denying the motion, to which Petitioner timely
objected (ECF No. 18). See Fed. R. Civ. P. 72(a).1

1

This Rule provides in relevant part:
When a pretrial matter not dispositive of a party’s claim or
defense is referred to a magistrate judge to hear and decide,
the magistrate judge must . . . issue a written order stating
the decision. A party may serve and file objections to the
order within 14 days after being served with a copy. A
party may not assign as error a defect in the order not
timely objected to. The district judge in the case must
consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.

(1:10CV2810)
Petitioner seeks the appointment of counsel to assist her in effectively presenting her
claims in these proceedings.2 Petitioner, however, has no absolute right to be represented by
counsel on federal habeas corpus review. See Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d
489, 492 (6th Cir. 1995) (the district court did not err in denying plaintiff a court appointed
attorney because he had no constitutional right to appointed counsel in a civil case).
It is well established that a habeas corpus proceeding is civil in nature, and the
Sixth Amendment right to counsel afforded for criminal proceedings does not
apply. The decision to appoint counsel for a federal habeas petitioner is within the
discretion of the court and is required only where the interests of justice or due
process so require. Appointment of counsel in a habeas proceeding has been
found to be mandatory only if the district court determines that an evidentiary
hearing is required. Where no evidentiary hearing is necessary, as in the instant
case, the district court will often consider (1) the legal complexity of the case,
(2) factual complexity of the case, and (3) petitioner’s ability to investigate and
present his claims, along with any other relevant factors.
Gammalo v. Eberlin, No. 1:05CV617, 2006 WL 1805898, at *2 (N.D. Ohio June 29, 2006)
(Boyko, J.) (citations omitted).
Here, the Court is not persuaded that the interests of justice or due process necessitate the
appointment of counsel on Petitioner’s behalf. It does not appear that an evidentiary hearing will
be required to resolve the grounds for relief raised by Petitioner. Furthermore, the record reflects
that Petitioner, a former attorney, has effectively argued her position without the benefit of

2

As noted by Magistrate Judge McHargh, Petitioner actually has three
petitions for writ of habeas corpus pending in this court. See also Baumgartner v.
Eppinger, No. 3:10CV678 (N.D. Ohio) (filed March 31, 2010) (Polster, J.), and
Baumgartner v. Shewalter, No. 1:10CV2811 (N.D. Ohio) (filed Dec. 13, 2010) (Pearson,
J.). See ECF No. 17 at 1 n. 1. Petitioner filed motions for appointment of counsel in all
three cases, but has only filed objections to the denial of her motion in the above-entitled
action and Case No. 1:10CV2811.
2

(1:10CV2810)
counsel. Moreover, resolution of her claims is not so complex that the appointment of an
attorney is required. Finally, the Court does not find that Petitioner’s ability to investigate and
present her claims warrants the appointment of counsel. The Magistrate Judge’s order contains
nothing that is clearly erroneous or contrary to law. Therefore, the Court overrules Petitioner’s
objections to the Magistrate Judge’s Memorandum and Order denying Petitioner’s request for the
appointment of counsel.

IT IS SO ORDERED.

July 15, 2011
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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