United States District Court, S.D. Illinois
RAY A. GOUGH, Petitioner,
JASON C. GARNETT, Respondent.
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
matter is before the Court on petitioner's third
reconsideration of motion for appointment of counsel, which
the Court construes as an appeal of a magistrate decision
(Doc. 22). Petitioner Ray A. Gough seeks to appeal the
September 1, 2017 Order issued by Magistrate Judge Proud
denying his motion to reconsider appointment of counsel (Doc.
21). Based on the following, the Court affirms Magistrate
Judge Proud's September 1, 2017 Order and denies
Rule 73.1(a) of the Southern District of Illinois provides:
(a) Appeal of Non-Dispositive Matters - 28 U.S.C. §
Any party may appeal a Magistrate Judge's order
determining a motion or matter within 14
days after issuance of the Magistrate Judge's
order, unless a different time is prescribed by the
Magistrate Judge or a District Judge. The party shall file
with the Clerk of Court and serve on all parties a written
request for an appeal which shall specifically designate the
order or part of the order that the parties wish the Court to
reconsider. A District Judge shall reconsider the matter and
shall set aside any portion of the Magistrate Judge's
order found to be clearly erroneous or contrary to law. A
District Judge may also reconsider sua sponte any matter
determined by a Magistrate Judge under this rule.
under Federal Rule of Civil Procedure 72(a), the Court may
modify or reverse a magistrate judge on a non-dispostive
issue upon a showing that the magistrate judge's decision
is “clearly erroneous or contrary to the law.”
Specifically, Federal Rule of Civil Procedure 72(a) provides:
Nondispositive Matters. When a pretrial
matter not dispositive of a party's claim or defense is
referred to a magistrate judge to hear and decide, the
magistrate judge must promptly conduct the required
proceedings, and when appropriate, issue a written order
stating the decision. A party may serve and file objections
to the order within 14 days after being served with a copy. A
party may not assign as error a defect in the order not
timely objected to. The district judge in the case must
consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to the
finding is clearly erroneous when “the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
Anderson v. City of Bessemer, 470 U.S. 564, 573
(1985) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)); Weeks v. Samsung
Heavy Indus. Co., 126 F.3d 926 (7th Cir. 1997).
applying this “clear error” standard, a district
judge may overturn a decision “only if the district
court is left with the definite and firm conviction that a
mistake has been made.” Weeks v. Samsung Heavy
Indus. Co. Ltd., 126 F.3d 926, 943 (7th Cir. 1997). If
there are two permissible views, the reviewing court will not
overturn the decision solely because it would have chosen the
other. The clear error standard requires more than mere
the Court will affirm Judge Proud's decision unless his
factual findings are clearly erroneous or his legal
conclusions are contrary to law. Fed.R.Civ.P. 72(a); 28
U.S.C. § 636(b)(1)(A); S.D. Ill. Local Rule 73.1(a). The
Court finds that petitioner has not established that Judge
Proud's Order regarding appointment of counsel was
clearly erroneous or contrary to the law in this case.
pointed out by Judge Proud, there is no constitutional right
to counsel in habeas corpus cases. Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987); Lavin v.
Rednour, 641 F.3d 830, 833 (7th Cir. 2011); Pruitt
v. Mote, 503 F.3d 647, 657 (7th Cir. 2007). 28 U.S.C.
§2254(h) provides that the Court may appoint counsel for
an indigent habeas petitioner, and that the appointment of
counsel in such a case is governed by 18 U.S.C. §3006A.
Neither statute creates a right to counsel; rather, the
statutes afford the court broad discretion to appoint counsel
for a petitioner seeking habeas relief. When presented with a
request to appoint counsel in a civil case, the court must
make the following inquiries: “(1) has the indigent
plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent
to litigate it himself?” Santiago v. Walls,
599 F.3d 749, 760-61 (7th Cir. 2010), citing Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).
Court finds that petitioner has not established that Judge
Proud's orders were clearly erroneous or contrary to the
law in this case. Specifically, the Court finds that
petitioner's pleadings are readily understandable and
literate, including his reply filed on January 11, 2018 (Doc.
23). Petitioner sets forth his arguments very clearly and
cites relevant law, which suggests he can handle the case
without counsel. Further, the Court agrees with Judge Proud
that the issues involved in this case are not overly complex,
but in fact are straightforward, i.e., whether there is a
federal constitutional right to a speedy trial in a civil
proceeding. Moreover, this Court has explained that habeas
review is generally limited to materials that were before the
state court and that, except in unusual circumstances, an
evidentiary hearing is precluded. Cullen v.
Pinholster, 131 S.Ct. 1388, 1398-99 (2011). In this
case, no hearing will be necessary.
because petitioner does not agree with the law, the
disagreement is not indicative of a mistake warranting
reversal of the magistrate judge's prior decisions.
Therefore, based on the law of this Circuit, it is clear that
good cause has not been shown to warrant reversal of Judge
Proud's Order (Doc. 21). Petitioner failed to show that
Judge Proud's decision was clearly erroneous or contrary
to law. Upon further review of the pleadings, as described
above, the Court also finds petitioner's objections to be
meritless. Thus the Court OVERRULES
petitioner's objections and AFFIRMS
Magistrate Judge Proud's Order (Doc. 21).