Starks v. Clipper
Order denying Petitioner's Motion for appointment of counsel (Related Doc # 7 ); denying Petitioner's request for an evidentiary hearing; and granting Petitioner's Motion for a 90 day extension of time to file Traverse. Traverse due on or before 12/4/2017. Magistrate Judge Kathleen B. Burke on 9/27/2017. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WARDEN KIMBERLY CLIPPER,
CASE NO. 3:17-cv-00993
JUDGE JAMES S. GWIN
KATHLEEN B. BURKE
Pending before the Court is Petitioner’s September 5, 2017, Request for 90 Day
Extension of Time to File Traverse and Request for Appointment of Counsel (“Motion”). Doc.
7. In his Motion, Petitioner also requests an evidentiary hearing. Id. Petitioner seeks the
requested relief “due to the complexity of the case at bar.” Doc. 7, p. 1. For the reasons set forth
herein, Petitioner’s Motion is GRANTED in part and DENIED in part.
Request for appointment of counsel
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. See, e.g., Cobas
v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (citing McCleskey v. Zant, 499 U.S. 467, 495, 111
S.Ct. 1454, 113 L.Ed.2d 517 (1991)); Douglas v. Maxwell, 357 F.2d 320, 321 (6th Cir. 1966);
(there is no Sixth Amendment right to appointed counsel in habeas cases since a habeas corpus
proceeding is not a criminal proceeding). The Rules Governing § 2254 Cases (“Habeas Rules”)
provide situations when a federal habeas court must appoint counsel but do not otherwise set a
standard for when the court may appoint counsel. See, e.g., Rule 8 of the Rules Governing
Section 2254 Cases, 28 U.S.C. foll. § 2254 (counsel must be appointed if evidentiary hearing is
When not required by rule, the appointment of counsel for federal habeas petitioners
who, like Petitioner, have filed pursuant to § 2254, is governed by the Criminal Justice Act, 18
U.S.C. § 3006A. See 28 U.S.C. § 2254(h). Pursuant to 18 U.S.C. § 3006A, the decision to
appoint counsel for a federal habeas petitioner is within the court’s discretion, and representation
may be provided when “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2); Mira v.
Marshall, 806 F.2d 636, 638 (6th Cir. 1986) (“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 is only justified in ‘exceptional
circumstances,’ and is unnecessary where claims are ‘relatively straightforward’ and arise under
settled law.” U.S. v. Pullen, 2012 WL 116035, * 1 (N.D. Ohio Jan. 13, 2012) (denying motion
for appointment of counsel in habeas proceeding filed pursuant to 28 U.S.C. § 2255) (citing
Gilbert v. Barnhart, 2009 WL 4018271, *1 (E.D. Mich. Nov. 19, 2009) (§ 2254 proceeding) and
Bookstore v. Addison, 2002 WL 31538688, at *2 (10th Cir. Nov. 6, 2002) (§ 2254 proceeding)).
Petitioner raises relatively straightforward grounds for relief 1 and he has not shown that
exceptional circumstances exist warranting the appointment of counsel. Accordingly, his request
for appointment of counsel is DENIED.
Request for evidentiary hearing
In Cullen v. Pinholster, the United States Supreme Court held that “review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
In Ground One, Petitioner asserts that his convictions were not supported by sufficient evidence and were against
the manifest weight of the evidence. Doc. 1, p. 4. In Ground Two, Petitioner asserts that trial counsel rendered
ineffective assistance of counsel. Doc. 1, p. 5.
the merits.” 2 563 U.S. 170, 182 (2011). “Provisions like §§ 2254(d)(1) and (e)(2) ensure that
federal courts sitting in habeas are not an alternative forum for trying facts and issues which a
prisoner made insufficient effort to pursue in state proceedings.” Id. at 186 (internal citations
and quotations omitted).
Petitioner has not shown that the state court did not adjudicate his claims on the merits
nor has he provided any basis for expansion of the record or an evidentiary hearing.
Accordingly, Petitioner’s request for an evidentiary hearing is DENIED.
Request for extension of time to file Traverse
Petitioner’s request for a 90 day extension of time to file Traverse is GRANTED.
Petitioner’s Traverse was originally due on September 4, 2017. See Doc. 3. Petitioner’s
Traverse is due on or before December 4, 2017.
Dated: September 27, 2017
Kathleen B. Burke
United States Magistrate Judge
“Section 2254(e)(2), [which] imposes a limitation on the discretion of federal habeas courts to take new evidence
in an evidentiary hearing[,] . . . continues to have force where § 2254(d)(1) does not bar federal habeas relief.”
Pinholster, 563 U.S. at 185.
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