Gott v. Coleman
Filing
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Memorandum Opinion and Order: Petitioner's 8 Motion for appointment of counsel is Denied. Petitioner's 10 Motion for extension of time to file his Traverse is Granted. Traverse is due on or before 1/22/16. Signed by Magistrate Judge Kenneth S. McHargh on 12/8/2015. (O,K)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RAY A. GOTT,
Petitioner
v.
JOHN COLEMAN,
Warden,
Respondent
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3:15CV1148
JUDGE JAMES S. GWIN
(Mag. Judge Kenneth S. McHargh)
MEMORANDUM
AND ORDER
McHARGH, MAG. JUDGE
The petitioner Ray A. Gott (“Gott”) has filed a petition pro se for a writ of
habeas corpus, arising out of his 2011 conviction for voluntary manslaughter, with a
firearm specification, in the Lucas County (Ohio) Court of Common Pleas. (Doc. 1.)
In his petition, Gott raises two grounds for relief:
1. The trial court committed error by excluding expert testimony
central to defense of self-defense.
2. The trial court improperly excluded and/or limited evidence of the
character of the victim.
(Doc. 1.) The respondent has filed a Return of Writ. (Doc. 9.) The petitioner has
not yet filed a Traverse.
Currently before the court are Gott’s motion for the appointment of counsel
(doc. 8), and Gott’s motion for extension of time to file his Traverse (doc. 10).
The petitioner seeks appointment of counsel to represent him in this habeas
proceeding. (Doc. 8.) His motion stated that a memorandum in support, giving his
reasons to support the appointment, was attached (doc. 8, at 1); however, no such
memorandum was actually attached to the motion. The court notified Gott that the
memorandum was missing, but he has not filed anything in response.
There is no constitutional or statutory right to counsel in habeas proceedings,
except for those prisoners under a capital sentence. Morris v. Dormire, 217 F.3d
556, 558 (8th Cir.), cert. denied, 531 U.S. 984 (2000) (citing 28 U.S.C. § 2261). See
also Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002), cert. denied, 538 U.S. 984
(2003) (citing McCleskey v. Zant, 499 U.S. 467, 495 (1987)); McKethan v. Mantello,
292 F.3d 119, 123 (2d Cir. 2002); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir.
1994).
However, a district court may appoint counsel for a habeas petitioner when
“the interests of justice so require.” Hoggard, 29 F.3d at 471 (citing 18 U.S.C.A. §
3006A(a)(2)). The decision whether to appoint counsel is left to the sound discretion
of the district court. Morris, 217 F.3d at 558-559. The appointment of counsel is
discretionary when it has been determined that no evidentiary hearing is necessary.
Hoggard, 29 F.3d at 471; Reese v. Fulcomer, 946 F.2d 247, 264 (3d Cir. 1991), cert.
denied, 503 U.S. 988 (1992). Federal courts have not developed a uniform approach
to motions for appointment of counsel.
In McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997), the Eighth Circuit
suggested “several factors to guide a district court when it evaluates whether a
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petitioner needs court appointed counsel. These include the factual and legal
complexity of the case, and the petitioner’s ability both to investigate and to
articulate his claims without court appointed counsel.” See also Hoggard, 29 F.3d
at 471 (same). In Sellers v. United States, the district court considered “the viability
or frivolity of the indigent’s claims, the nature and complexity of the case, and the
indigent’s ability to present the case.” Sellers v. United States, 316 F.Supp.2d 516,
522 (E.D. Mich. 2004).
The court has reviewed the record, and the grounds of Gott’s petition. The
court has considered the factors discussed in McCall and Sellers. The motion (doc. 8)
for appointment of counsel is DENIED.
Gott’s motion (doc. 10) for extension of time to file his Traverse is GRANTED,
and Gott shall file his Traverse on or before January 22, 2016.
IT IS SO ORDERED.
Dated:
Dec. 8, 2015
/s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge
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