United States District Court, E.D. Michigan, Southern Division
ORDER 1) DENYING PETITIONER'S MOTION FOR
APPOINTMENT OF COUNSEL (ECF NO. 15); 2) GRANTING
PETITIONER'S MOTION TO SUPPLEMENT AMENDED PETITION (ECF
NO. 18); 3) DENYING PETITIONER'S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 19); AND 4) DENYING PETITIONER'S MOTION
FOR CLARIFICATION (ECF NO. 20)
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
Avern Burnside filed a pro se habeas corpus petition
under 28 U.S.C. § 2254. Petitioner challenges his
convictions for assault with intent to murder, Mich. Comp.
Laws § 750.83; carrying a concealed weapon, Mich. Comp.
Laws § 750.227(2); felon in possession of a firearm,
Mich. Comp. Laws § 750.224f; discharging a weapon from a
vehicle, Mich. Comp. Laws § 750.234a; and possession of
a firearm during the commission of a felony, Mich. Comp. Laws
§ 750.227b. Now before the Court are Petitioner's
Motion for Appointment of Counsel, Motion to Supplement
Amended Petition, Motion for Summary Judgment, and Motion for
Motion for Appointment of Counsel
seeks the appointment of counsel. Petitioner has no absolute
right to be represented by counsel on federal habeas corpus
review. See Abdur-Rahman v. Michigan Dept. of
Corrections, 65 F.3d 489, 492 (6th Cir. 1995).
“‘[A]ppointment of counsel in a civil case is . .
. a matter within the discretion of the court. It is a
privilege and not a right.'” Childs v.
Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). A habeas
petitioner may obtain representation at any stage of the case
“[w]henever the United States magistrate or the court
determines that the interests of justice so require.”
18 U.S.C. § 3006A(a)(2)(B). The Court determines that
the interests of justice do not require appointment of
Motion to Supplement Amended Petition
has filed a Motion to Supplement Amended Petition. Federal
Rule of Appellate Procedure Rule 15(a)(2) allows a party to
amend a pleading by leave of court and provides that the
court “should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Petitioner's
request to supplement his amended petition does not appear to
be made in bad faith or to be an attempt to delay the
proceedings. The supplement to the amended petition provides
additional support and argument for the claims raised in the
amended petition. It does not raise additional claims for
relief. Further, Respondent does not oppose the motion. The
Court will grant the motion.
Motion for Summary Judgment
motion for summary judgment under Fed.R.Civ.P. 56 presumes
the absence of a genuine issue of material fact for trial.
The Court must view the evidence and draw all reasonable
inferences in favor of the non-moving party, and determine
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). The
“[s]ummary judgment procedure is properly regarded not
as a disfavored procedural shortcut, but rather as an
integral part of the Federal Rules as a whole, which are
designed to secure the just, speedy and inexpensive
determination of every action.” Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986) (internal quotes
is “material” if its resolution affects the
outcome of the lawsuit. Lenning v. Commercial Union Ins.
Co., 260 F.3d 574, 581 (6th Cir. 2001).
“Materiality” is determined by the substantive
law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th
Cir. 2000). An issue is “genuine” if a
“reasonable jury could return a verdict for the
nonmoving party.” Henson v. Nat'l Aeronautics
& Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994)
(quoting Anderson, 477 U.S. at 248). Irrelevant or
unnecessary factual disputes do not create genuine issues of
material fact. St. Francis Health Care Centre v.
Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the
“record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, ” there
is no genuine issue of material fact. Simmons-Harris v.
Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a
factual dispute which “is merely colorable or is not
significantly probative” will not defeat a motion for
summary judgment which is properly supported. Kraft v.
United States, 991 F.2d 292, 296 (6th Cir. 1993);
see also Int'l Union, United Auto., Aerospace and
Agric. Implement Workers of Am. v. BVR Liquidating,
Inc., 190 F.3d 768, 772 (6th Cir. 1999).
party bringing the summary judgment motion has the initial
burden of informing the district court of the basis for its
motion and identifying portions of the record which
demonstrate the absence of a genuine dispute over material
facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover
Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The
party opposing the motion then may not “rely on the
hope that the trier of fact will disbelieve the movant's
denial of a disputed fact” but must make an affirmative
showing with proper evidence in order to defeat the motion.
Street v. J.C. Bradford & Co., 886 F.2d 1472,
1479 (6th Cir. 1989).
case, Petitioner has failed to satisfy the burden of
identifying portions of the record which demonstrate the
absence of a genuine dispute over material facts. Mt.
Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc.,
276 F.3d 845, 848 (6th Cir. 2002). Respondent's answer to
the first amended petition challenges the claims raised in
the petition and shows sufficient disagreement based upon
case law and sound legal reasoning that summary judgment is
not appropriate. Thus, the Court shall deny this motion.
Motion for Clarification
Petitioner has filed a Motion for Clarification. A review of
the motion shows that he is not seeking
clarification from the Court. Instead, he seeks to clarify
for the Court the claims raised in the habeas proceeding. The
Court already has before it Petitioner's first and second
amended petitions, reply brief, and ...