1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RICHARD CONRAD WITBRODT,

Petitioner,

CASE NO. 2:09-CV-11046

v. HONORABLE PAUL D. BORMAN

BLAINE LAFLER,

Respondent.

_______________________________/

ORDER DENYING PETITIONER’S MOTIONS TO REMAND FOR AN

EVIDENTIARY HEARING AND FOR APPOINTMENT OF COUNSEL

This matter is before the Court on Petitioner’s motions to remand for an evidentiary hearing

and for appointment of counsel, which were filed contemporaneously with his petition for writ of

habeas corpus. Respondent has recently been served with the petition and has not yet filed an

answer to the petition or a reply to Petitioner’s motions. The Court has reviewed Petitioner’s

motions and denies them for the reasons stated herein.

Petitioner asks the Court to remand the case to the state courts and/or conduct an evidentiary

hearing on his prosecutorial misconduct and ineffective assistance of counsel claims. Rule 8 of the

Rules Governing 2254 Cases in the United States District Courts states, in pertinent 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.

As noted, Respondent has not yet filed an answer to the petition or the relevant state court

documents. Those materials are due on September 28, 2009. The Court will then have to review

the case. Petitioner’s request for a remand or an evidentiary hearing is therefore premature.

2:09-cv-11046-PDB-CEB Doc # 7 Filed 03/31/09 Pg 1 of 3 Pg ID 211
2

Petitioner also seeks appointment of counsel to assist him with his case. Petitioner, however,

has no absolute right to be represented by counsel on federal habeas corpus review. See AbdurRahman 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)). Neither discovery nor an evidentiary hearing

are necessary at this time, and the interests of justice do not require appointment of counsel. See 18

U.S.C. § 3006A(a)(2)(B); 28 U.S.C. foll. § 2254, Rules 6(a) and 8(c).

Accordingly, the Court DENIESWITHOUT PREJUDICE Petitioner’s motions to remand

for an evidentiary hearing and for appointment of counsel. The Court will bear in mind Petitioner’s

requests if, following a review of the pleadings and state court record, the Court determines that an

evidentiary hearing and/or appointment of counsel is necessary. Petitioner need not file additional

motions concerning these matters.

IT IS SO ORDERED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: March 31, 2009

2:09-cv-11046-PDB-CEB Doc # 7 Filed 03/31/09 Pg 2 of 3 Pg ID 212
3

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

March 31, 2009.

S/Denise Goodine 

Case Manager

2:09-cv-11046-PDB-CEB Doc # 7 Filed 03/31/09 Pg 3 of 3 Pg ID 213