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George Gewargis v. Randy Davis

September 4, 2012

GEORGE GEWARGIS, PETITIONER,
v.
RANDY DAVIS,*FN1 RESPONDENT.



The opinion of the court was delivered by: Blanche M. Manning United States District Court Judge

MEMORANDUM AND ORDER

Petitioner George Gewargis's motion for appointment of counsel and his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 are before the court. For the following reasons, Mr. Gerwargis' motion for appointment of counsel and his § 2254 petition are both denied.

I. Motion for Appointment of Counsel

The court first considers Mr. Gerwargis' motion for appointment of counsel. There is no constitutional or statutory right to appointment of counsel in a civil case. See, e.g., Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.1992). Counsel is traditionally appointed in a habeas corpus proceeding if an evidentiary hearing is needed or if the interests of justice so require. See Rule 8(c) of the Rules Governing Section 2254 Cases; see also 18 U.S.C. § 3006A(a)(2)(B). No evidentiary hearing is necessary in this case, the court's review of the record shows that Mr. Gewargis is able to articulate his claims, and the court will construe all of his filings liberally given his pro se status. Accordingly, the court finds, in an exercise of its discretion, that the interests of justice do not necessitate appointed counsel and thus denies the motion for appointment of counsel.

II. Background

A. Facts

The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Mr. Gewargis has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir.2002). The court thus adopts the state court's recitation of the facts, and will briefly summarize the key facts which are relevant to Mr. Gerwargis' § 2254 petition.

On August 16, 2008, police officers responded to a complaint that Mr. Gewargis had confronted two neighbors (Louis Ocasio, Jr. and Sr.) with a gun and repeatedly told them he "should kill" them after the men argued about a parking space. People v. Gewargis, No. 1-09-1539 (1st Dist. 2010) (Rule 23 Order), Dkt. 17, Ex. A at 1-2. The officers arrested Mr. Gewargis outside his home, handcuffed him, placed him in a squad car, and knocked on the back door of his home.

Ruben Rosario answered the door. The police did not know who he was at the time or whether he lived with Mr. Gewargis, and later learned that he did not live there. The officers told Mr. Rosario that Mr. Gewargis had displayed a gun and asked if he knew where it was. Mr. Rosario let the police in and led them to a specific drawer in a dresser in a bedroom in the home. Mr. Gewargis did not give the police permission to enter the home or search the dresser.

The police arrested Mr. Gewargis, who sought to suppress the search under the Fourth Amendment. The State argued that it was supported by apparent third-party consent and exigent circumstances. The trial court found that the officers had reacted reasonably to a report of a possibly loaded gun and thus did not discuss the issue of third-party consent, which it stated "was not applicable." Id. at 3; see also People v. Gewargis, No. 1-09-1539 (Coleman, J., dissenting) at 11 ("The trial court specifically sought and received from the prosecution a concession that it was not relying on consent as a basis for the search and ruled, 'Clearly, third-party consent *** does not apply here, and the officer doesn't suggest that it does'"). After a stipulated bench trial in the Circuit Court of Cook County, Mr. Gewargis was convicted of being an armed habitual criminal and sentenced to a six-year term of imprisonment.

B. Direct Appeal

On direct appeal, Mr. Gewargis argued that the trial court erred in denying his motion to suppress because exigent circumstances authorizing a warrantless, non-consensual search of his home (which was owned by his sister) did not exist and there was no valid third-party consent. The Illinois Appellate Court affirmed on June 30, 2010, based on its finding that the undisputed evidence showed that third-party consent existed for the search.

Mr. Gerwargis filed a counseled petition for leave to appeal ("PLA") with the Illinois Supreme Court challenging the Illinois Appellate Court's reliance on third-party consent. Dkt. 17, Ex. E (PLA in People v. Gewargis, No. 110877). The Illinois Supreme Court denied the PLA on November 24, 2010. Dkt. 17, Ex. F. Mr. ...


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