United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTIONS FOR
EVIDENTIARY HEARING, APPOINTMENT OF COUNSEL, AND ORAL
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
a habeas case brought pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Kalamazoo County Circuit Court,
Michigan prisoner DeMarcus Finley (“Petitioner”)
was convicted of first-degree murder, felon in possession of
a firearm, possession with intent to deliver marijuana, and
two counts of possession of a firearm during the commission
of a felony. In 2014, he was sentenced to life imprisonment
without parole on the murder conviction, to concurrent terms
of five to 15 years imprisonment on the felon in possession
and marijuana convictions, and to concurrent terms of two
years imprisonment on the felony firearm convictions to be
served consecutively to the other sentences. In his petition,
he raises claims concerning sufficiency of the evidence,
admission of gruesome photographs and hearsay testimony,
conduct of the prosecutor, judgment of sentence, juror bias,
joinder of charges, and effectiveness of trial counsel.
Respondent has recently filed an answer to the petition and
the state court record, and Petitioner has filed a reply. The
matter is now before the Court on Petitioner's motions
for evidentiary hearing, oral argument, and appointment of
counsel. Respondent has not filed a reply to those motions.
Evidentiary Hearing and Oral Argument
requests an evidentiary hearing and oral argument. In support
of his motions, he states that his habeas issues are
meritorious, but complex, and that an evidentiary hearing and
oral argument are necessary to properly resolve his habeas
to Rule 5 of the Rules Governing Section 2254 Cases,
Respondent is required to submit all transcripts and
documents relevant to the determination of the habeas
petition at the time the answer is filed. See Rule
5, 28 U.S.C. foll. § 2254. With regard to an evidentiary
hearing, Rule 8 of the Rules Governing Section 2254 Cases
provides in relevant part, “If the petition is not
dismissed at a previous stage in the proceeding, the judge,
after the answer and the transcript and record of state court
proceedings are filed, shall, upon review of those
proceedings and of the expanded record, if any, determine
whether an evidentiary hearing is required.” Rule 8, 28
U.S.C. foll. § 2254.
the federal habeas statute, facts determined by a state court
are presumed correct absent clear and convincing evidence to
the contrary. 28 U.S.C. § 2254(e)(1). An evidentiary
hearing is available under that rule only when the claim
relies upon a new rule of constitutional law or a new factual
predicate and the facts underlying the claim would show by
clear and convincing evidence that no reasonable factfinder
would have found the petitioner guilty. 28 U.S.C. §
Court has yet to review this case in detail. Upon preliminary
review, however, the Court finds that neither an evidentiary
hearing under Rule 8 or 28 U.S.C. § 2254(e) nor oral
argument are necessary at this time. Additionally, the Court
notes that federal habeas review is generally limited to the
record that was before the state courts. See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (ruling that habeas
review under 28 U.S.C. §2254(d) is “limited to the
record that was before the state court that adjudicated the
claim on the merits”). Accordingly, the Court
DENIES WITHOUT PREJUDICE Petitioner's
motions for evidentiary hearing and oral argument. The Court
will keep those requests in mind should further development
of the record or the issues be necessary for the proper
resolution of this matter. Petitioner need not file
Appointment of Counsel
also requests the appointment of counsel. In support of his
motion, he asserts that appointment of counsel is necessary
because he cannot afford counsel, he has limited education,
legal knowledge, and access to legal materials, and his
habeas issues are complex.
prisoner has no absolute right to be represented by counsel
on federal habeas review. See Abdur-Rahman v. Michigan
Dept. of Corrections, 65 F.3d 489, 492 (6th Cir. 1995);
see also Wright v. West, 505 U.S. 277, 293 (1992)
(citing Pennsylvania v. Finley, 481 U.S. 551, 555
(1987)). “‘[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) (quoting
United States v. Madden, 352 F.2d 792, 793 (9th Cir.
1965)). Petitioner has submitted his habeas petition and
supporting documents. Respondent has recently filed an answer
to the petition and the state court record, and Petitioner
has more recently filed a reply.
conducted a preliminary review of the pleadings, the Court
finds that neither an evidentiary hearing, discovery, nor
oral arguments are necessary for the resolution of this case,
and the interests of justice do not require the appointment
of counsel. See 18 U.S.C. § 3006A(a)(2)(B);
Rules 6(a) and 8(c), Rules Governing Section 2254 Cases.
Accordingly, the Court DENIES
Petitioner's motion for appointment of counsel. The Court
will bear the request in mind should the appointment of
counsel be necessary for the proper resolution of this
matter. Petitioner need not file another motion.