UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Michigan prisoner David W. Ketchum, Jr. filed a “Pre-petition Application for 

Appointment of Counsel Motion” on July 7, 2015. (Dkt. 1.) The motion implies that Ketchum 

intended to initiate a habeas corpus proceeding pursuant to 28 U.S.C. § 2254. However, 

Ketchum did not submit a petition for a writ of habeas corpus in compliance with the Federal 

Rules of Civil Procedure and the Federal Habeas Rules—indeed, he stated that his motion “shall 

not be misconstrued as a writ for habeas corpus. . . .” (Id. at PageID 3.) The Court therefore 

issued a deficiency order on July 30, 2015 requiring Ketchum to submit a habeas petition within 

30 days of the filing date of the order. The order provided that if he did not do so, his case would 

be dismissed. The time for submitting the habeas petition has elapsed and Ketchum has failed to 

correct the deficiency. Instead, in response to the Court’s deficiency order, Ketchum filed 

objections (Dkt. 5) and a motion to compel (Dkt, 6), again seeking the appointment of counsel 

prior to the filing of a habeas petition. 

It is well-established that a party must file a complaint to institute a civil action in federal 

court. The Federal Rules of Civil Procedure provide that “[a] civil action is commenced by 

DAVID W. KETCHUM, JR., #579069 

 Petitioner, 

 

v. 

 

SHERRY BURT, 

 Respondent. 

Case No. 15-cv-12584 

Honorable Laurie J. Michelson 

ORDER DISMISSING CASE, DENYING MOTION FOR APPOINTMENT OF 

COUNSEL [1], AND DENYING MOTION TO COMPEL [7] 

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filing a complaint with the court.” Fed. R. Civ. P. 3. Prior to the filing of a complaint, “an 

action has not ‘commenced’ within the meaning of the Federal Rules” and the Court lacks 

subject matter jurisdiction to grant relief against any named defendants. Lusick v. City of 

Philadelphia, No. 12-cv-5150, 2013 WL 1187064, at *2 (E.D. Pa. March 21, 2013); see also

Gibson v. Department of Corrections, No. 5:07-cv-255-RS-EMT, 2007 WL 3170688, at *1 

(N.D. Fla. Oct. 30, 2007) (stating that a party “cannot commence a civil action by filing a 

motion”); Luna v. Ford Motor Co., No. 3:06-0658, 2007 WL 837237, at *2 (M.D. Tenn. March 

14, 2007) (“Prior to the filing of a complaint a court lacks subject matter jurisdiction and is 

powerless to grant preliminary injunctive relief.”). 

The United States Supreme Court has held that a habeas suit “begins with the filing of an 

application for habeas corpus relief—the equivalent of a complaint in an ordinary civil case.” 

Woodford v. Garceau, 538 U.S. 202, 208 (2003). Habeas petitioners must meet the heightened 

pleading standards set forth in the Rules Governing Section 2254 Cases. McFarland v. Scott, 

512 U.S. 849, 856 (1994). Those rules provide, in relevant part, that a habeas petition must: 

(1) specify all the grounds for relief available to the petitioner; 

(2) state the facts supporting each ground; 

(3) state the relief requested; 

Rule 2(c), Rules Governing Section 2254 Cases. Additionally, the petition must “substantially 

follow either the form appended to [the habeas] rules or a form prescribed by a local district 

court rule.” Rule 2(d), Rules Governing Section 2254 Cases. “A prime purpose of Rule 2(c)’s 

demand that habeas petitioners plead with particularity is to assist the district court in 

determining whether the State should be ordered to ‘show cause why the writ should not be 

granted.’” Mayle v. Felix, 545 U.S. 644, 656 (2005) (citation omitted). The Court has authority 

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to dismiss before service any petition in which it plainly appears that the petitioner is not entitled 

to relief. Rule 4, Rules Governing Section 2254 Cases. 

 Petitioner’s current pleadings do not meet the foregoing standards. He has also failed to 

correct the deficiency by submitting a habeas petition as required by the Court’s prior order. The 

Court is consequently unable to perform its obligations under Rule 4 to preliminarily review the 

case.1

 Accordingly, the Court shall dismiss this case for failure to comply with the Federal Rules 

of Civil Procedure and the Rules Governing Section 2254 Cases. 

Moreover, contrary to Petitioner’s assertion, he is not entitled to the appointment of 

counsel prior to the filing of a habeas petition. Petitioner has no absolute right to be represented 

by counsel on habeas review. “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); see also Lavado v. 

Keohane, 992 F.2d 601, 604–05 (6th Cir. 1993); Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th 

Cir. 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.”). The appointment of counsel in a habeas proceeding is 

mandatory only if the district court determines that an evidentiary hearing is required. Lemeshko 

v. Wrona, 325 F.Supp.2d 778, 787 (E.D. Mich. 2004). But without a Petition being filed, no civil 

case exists–and the Court cannot appoint counsel. 

Accordingly, for the reasons stated, the Court DISMISSES this case. This dismissal is 

without prejudice to Petitioner instituting a new civil action by filing a habeas petition under 28 

 

1

The Court notes that Petitioner previously filed a habeas petition with this Court which 

was dismissed without prejudice on exhaustion grounds. Ketchum v. Burt, No. 2:15-CV-10763 

(E.D. Mich. April 14, 2015) (Murphy, J.). 

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U.S.C. § 2254. The Court makes no determination as to the procedural or substantive merits of 

any such petition. Additionally, given this determination, the Court DENIES Petitioner’s 

motions for pre-petition appointment of counsel (Dkt. 1) and to compel (Dkt. 7). 

IT IS SO ORDERED. 

 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

 United States District Judge 

Dated: October 23, 2015 

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each 

attorney or party of record herein by electronic means or first class U.S. mail on October 23, 

2015. 

 s/K. Winslow 

CASE MANAGER GENERALIST and 

DEPUTY CLERK 

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