Opinion
Case No. 01-CV-10045-BC
March 15, 2002
OPINION AND ORDER DENYING THE PETITIONER'S MOTION FOR SUMMARY JUDGMENT AND FOR APPOINTMENT OF COUNSEL AS PREMATURE
Petitioner Thomas Kenneth Groke, an inmate at the Pine River Correctional Facility in St. Louis, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is confined in violation of his constitutional rights. Before the Court are petitioner's motions for summary judgment and appointment of counsel.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir.) cert. denied 121 S.Ct. 571 (2000) (quoting Fed.R.Civ.P. 56(c)). The summary judgment rule applies to habeas proceedings. Hauck v. Mills, 941 F. Supp. 683, 686-687 (M.D. Tenn. 1996). However, a federal district court should not enter a summary judgment in a habeas case if the pleadings or papers present a genuine issue of fact. United States ex. rel. Johnson v. DeRobertis, 718 F.2d 209, 211 (7th Cir. 1983).
In this case, the petitioner filed his motion for summary judgment before the respondent had even filed an answer. To the extent that petitioner is asking the Court to enter a default judgment based upon respondent's failure to file a response by the original date of May 4, 2001, the Court is has no power to grant the petitioner a default judgment in a habeas corpus proceeding under 28 U.S.C. § 2254. Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970); see also Faust v. Anderson, 52 F. Supp.2d 930, 933 (N.D. Ind. 1999). The failure of the State of Michigan to file a timely response does not relieve a habeas petitioner of his or her burden of proving that his or her custody is in violation of United States law. Allen, 424 F.2d at 138. Moreover, the Court has the discretion in extending the time to file a response to a habeas corpus petition and has chosen to do so. Clutchette v. Rushen, 770 F.2d 1469, 1474-1475 (9th Cir. 1985). Thus, the Court will deny petitioner's motion for summary judgment as premature.
Petitioner has also requested the appointment of counsel. In support of his motion for the appointment of counsel, petitioner states that: (1) he is an indigent prisoner; (2) that the issues involved in this case are of a very complex nature; (3) that the petitioner is without legal training and is limited by an outdated and ill prepared prison law library; (4) that the disputed facts in this case are complicated and substantial; (5) that the Attorney General has failed to respond to his petition by May 4, 2001, as ordered by the Court; and (6) that the appointment of counsel "serves the Court by effectively engaging in clear legal sophistry."
There is no constitutional right to counsel in habeas proceedings. Tapia v. Lemaster, 172 F.3d 1193, 1196 (10th Cir. 1999). 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. Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986). Appointment of counsel in a habeas proceeding is mandatory only if the district court determines that an evidentiary hearing is required. Swazo v. Wyoming Dep't of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). If no evidentiary hearing is necessary, the appointment of counsel in a habeas case remains discretionary. Satter v. Class, 976 F. Supp. 879, 885 (D.S.D. 1997).
Counsel may be appointed, in exceptional cases, for a prisoner appearing pro se in a habeas action. Johnson v. Howard, 20 F. Supp.2d 1128, 1129 (W.D. Mich. 1998). The exceptional circumstances justifying the appointment of counsel to represent a prisoner acting pro se in a habeas action occur where a petitioner has made a colorable claim, but lacks the means to adequately investigate, prepare, or present the claim. Id.
In the present case, petitioner has filed a twenty-four page brief in support of his petition, in which he raises three different issues for relief and cites to numerous federal and state cases. Petitioner has the means and ability to present his claims to the court. Furthermore, the petitioner's motion was filed before the respondent filed its answer to the petition and the petitioner responded in turn. Thus, the interests of justice at this point in time do not require appointment of counsel. 18 U.S.C. § 3006A(a)(2)(B); 28 U.S.C. § 2254, Rules 6(a) and 8(c). The Court will deny petitioner's motion for appointment of counsel without prejudice. The petitioner may file a new motion if an evidentiary hearing is necessary or some other special circumstance comes to light from the respondent's answer.
Accordingly it is ORDERED that the petitioner's motions for summary judgment [dkt #s 9 and 13] and for the appointment of counsel [dkt #6] are hereby DENIED WITHOUT PREJUDICE.