Motion to Appoint Counsel

on

STATE OF MICHIGAN

IN THE 31st CIRCUIT COURT FOR THE COUNTY OF ST. CLAIR

OFFICE OF THE CLERK
201 McMorran Blvd.
Port Huron, MI 48060
(810) 985-2031

 

Monday, April 6, 2009

Case No.: 09000113-PZ

Hon. Judge: D. J. Kelly

 

 

 

 

RE: People of the City of Port Huron v. Arthur L. Lockett

 

Dear Clerk of Court

:

Enclosed for filing, please find Defendant’s Motion To Appoint Counsel and brief in support; Requests For Admissions; Ex Parte Affidavit in support, and Proof of Service. And, Proof of Service of Summons,

And please except my sincere thanks, in advance, for this portion of your attention, time, and most kind cooperation in the matter.

 

 

Respectfully,

__________________________

Mr. Arthur L. Lockett

Pro se Defendant

909 Stone St. Apt. #1

Port Huron, Michigan 48060

 

 

 

 

 

 

STATE OF MICHIGAN

IN THE 31st CIRCUIT COURT FOR THE COUNTY OF ST. CLAIR

OFFICE OF THE CLERK
201 McMorran Blvd.
Port Huron, MI 48060
(810) 985-203148060
(810) 985-2031

Monday, April 6, 2009

People of the City of Port Huron, Hon. Judge: D. J. Kelly

Plaintiff, Case No.: 09000113-PZ

v.

Arthur L. Lockett

Defendant.

_____________________________________/

 

Motion To Appoint Counsel

NOW COMES Plaintiff, Arthur L. Lockett, pursuant to MCR. 2.119, and hereby seeks to have this Honorable Court appoint an attorney to assist him with his case. Under 28 U.S.C. § 1915(e)(1), a federal court may request counsel to represent an indigent plaintiff. 28U.S.C. § 1915(e)(1); Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992). Yet, appointment of counsel for an indigent party is a privilege justified only under exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993). To determine whether exceptional circumstances necessitating the appointment of counsel are present, courts consider the type of case involved, the ability of the plaintiff to represent himself, the complexity of the factual and legal issues, and whether the plaintiff’s claims are frivolous or have an extremely small likelihood of success. Id.; Reneer, 975 F.2d at 261; Mars v. Hanberry, 752 F.2d 254, 256 (6thCir. 1985).

Today, we reach the classification question and conclude that Halbert’s case is properly ranked with Douglas rather than Ross. Accordingly, we hold that the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals.

The Federal Constitution imposes on the States no obligation to provide appellate review of criminal convictions. McKane v. Durston,

153 U.S. 684, 687 (1894). Having provided such an avenue, however, a State may not “bolt the door to equal justice” to indigent defendants. Griffin v. Illinois, 351 U.S. 12, 24 (1956) (Frankfurter, J., concurring in judgment); see id., at 23 (same) (“[W]hen a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons … from securing such … review.”). Griffin held that, when a State conditions an appeal from a conviction on the provision of a trial transcript, the State must furnish free transcripts to indigent defendants who seek to appeal. Id., at 16—20 (plurality opinion). Douglas relied on Griffin’s reasoning to hold that, in first appeals as of right, States must appoint counsel to represent indigent defendants. 372 U.S., at 357. Ross held, however, that a State need not appoint counsel to aid a poor person in discretionary appeals to the State’s highest court, or in petitioning for review in this Court. 417 U.S., at 610—612, 615—618.

Constitution of the State of Michigan of 1963 Article I

Section 20. – Rights of accused in criminal proceedings. In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in prosecutions for misdemeanors punishable by imprisonment for not more than 1 year; to be informed of the nature of the accusation; to be confronted with the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor; to have the assistance of counsel for his or her defense; to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.

WHEREFORE, petitioner respectfully request this Honorable Circuit court to appoint Counsel.

Respectfully submitted:

______________________________

Mr. Arthur L. Lockett

Pro se Defendant

909 Stone St. Apt #1

Port Huron, Michigan 48060

STATE OF MICHIGAN

IN THE 31st CIRCUIT COURT FOR THE COUNTY OF ST. CLAIR

OFFICE OF THE CLERK


201 McMorran Blvd.
Port Huron, MI 48060
(810) 985-203148060
(810) 985-2031

Monday, April 6, 2009

People of the City of Port Huron, Hon. Judge: D. J. Kelly

Plaintiff, Case No.: 09000113-PZ

v.

Arthur L. Lockett

Defendant.

_____________________________________/

 

BRIEF IN SUPPORT

Motion To Appoint Counsel

NOW COMES Plaintiff, Arthur L. Lockett, and hereby seeks to have this Honorable Court appoint an attorney to assist him with his case. Under 28 U.S.C. § 1915(e)(1), a federal court may request counsel to represent an indigent plaintiff. 28U.S.C. § 1915(e)(1); Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992). Yet, appointment of counsel for an indigent party is a privilege justified only under exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993). To determine whether exceptional circumstances necessitating the appointment of counsel are present, courts consider the type of case involved, the ability of the plaintiff to represent himself, the complexity of the factual and legal issues, and whether the plaintiff’s claims are frivolous or have an extremely small likelihood of success. Id.; Reneer, 975 F.2d at 261; Mars v. Hanberry, 752 F.2d 254, 256 (6thCir. 1985).

The Sixth Amendment, in terms, provides that in all criminal prosecutions the accused shall enjoy the right ‘to have the Assistance of Counsel for his defense.’ In the

face of the reasoning of the Hurtado Case, if it stood alone, it would be difficult to justify the conclusion that the right to counsel, being thus specifically granted by the Sixth

1.

Amendment, was also within the intendement of the due process of law clause. But the Hurtado Case does not stand alone.

In the later case of Chicago, Burlington & Q.R. Co. v. Chicago, 166 U.S. 226, 241 , 17 S. Ct. 581, this court held that a judgment of a state court, even though authorized by statute, by which private property was taken for public use without just compensation, was in violation of the due process of law required by the Fourteenth Amendment, notwithstanding that the Fifth Amendment explicitly declares that private property shall not be taken for public use without just compensation.

This holding was followed in Norwood v. Baker, 172 U.S. 269, 277 , 19 S. Ct. 187; Smyth v. Ames, 169 U.S. 466, 524 , 18 S. Ct. 418, and San Diego Land & Town Company v. National City, 174 U.S. 739, 754 , 19 S. Ct. 804. [287 U.S. 45, 67] Likewise, this court has considered that freedom of speech and of the press are rights protected by the due process clause of the Fourteenth Amendment, although in the First Amendment, Congress is prohibited in specific terms from abridging the right. Gitlow v. People of State of New York, 268 U.S. 652, 666 , 45 S. Ct. 625; Stromberg v. California, 283 U.S. 359, 368 , 51 S. Ct. 532, 73 A.L.R. 1484; Near v. Minnesota, 283 U.S. 697, 707 , 51 S. Ct. 625.

These later cases establish that notwithstanding the sweeping character of the language in the Hurtado Case, the rule laid down is not without exceptions. The rule is an aid to construction, and in some instances may be conclusive; but it must yield to more compelling considerations whenever such considerations exist. The fact that the right involved is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’ (Hebert v. State of Louisiana, 272 U.S. 312, 316 , 47 S. Ct. 103, 104, 48 A.L.R. 1102), is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment, although it be specifically dealt with in another part of the Federal Constitution. Evidently this court, in the later cases enumerated, regarded the rights there under consideration as of this fundamental character. That some such distinction must be

2

observed is foreshadowed in Twining v. New Jersey, 211 U.S. 78, 99 , 29 S. Ct. 14, 19, where Mr. Justice Moody, speaking for the court, said that: ‘ … It is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. Chicago, Burlington & Quincy Railroad v. Chicago, 166 U.S. 226 , 17 S. Ct. 581. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in [287 U.S. 45, 68] the conception of due process of law.’ While the question has never been categorically determined by this court, a consideration of the nature of the right and a review of the expressions of this and other courts makes it clear that the right to the aid of counsel is of this fundamental character.

And of course it never has been doubted by this court, or any other so far as I know, that notice and hearing are preliminary steps essential to the passing of an enforceable judgment, and that they, together with a legally competent tribunal having jurisdiction of the case, constitute basic elements of the constitutional requirement of due process of law.

The words of Webster, so often quoted, that by ‘the law of the land’ is intended ‘a law which hears before it condemns,’ have been repeated in varying forms of expression in a multitude of decisions. In Holden v. Hardy, 169 U.S. 366, 389 , 18 S. Ct. 383, 387, the necessity of due notice and an opportunity of being heard is described as among the ‘immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.’ And Mr. Justice Field, in an earlier case, Galpin v. Page, 18 Wall. 350, 368, 369, said that the rule that no one shall be personally bound until he has had his day in court was as old as the law, and it meant that he must be cited to appear and afforded an opportunity to be heard. ‘Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.’ Citations to the same effect might be indefinitely multiplied, but there is no occasion for doing so.

Therefore, what, then, does a hearing include? Historically and in practice, in our

3

own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right.

The right [287 U.S. 45, 69] to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil of criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

The decisions all point to that conclusion. In Cooke v. United States, 267 U.S. 517, 537 , 45 S. Ct. 390, 395, it was held that where a contempt was not in open court, due process of law required charges and a reasonable opportunity to defend or explain. The court added, ‘We think this includes the assistance of counsel, if requested. …’ In numerous other cases the court, in determining that due process was accorded, has frequently stressed the fact that the defendant had the aid of counsel. See, for example, Felts v. Murphy, 201 U.S. 123, 129 , 26 S. Ct. 366; Frank v. Mangum, 237 U.S. 309, 344 , 35 S. Ct. 582; Kelley v. State of Oregon, 273 U.S. 589, 591 , 47 S. Ct. 504. In Ex parte Hidekuni Iwata (D.C.) 219 F. 610, 611, the federal district judge [287 U.S. 45, 70]

enumerated among the elements necessary to due process of law in a deportation case the opportunity at some stage of the hearing to secure and have the advice and assistance of counsel.

4

In Ex parte Chin Loy You (D.C.) 223 F. 833, 838, also a deportation case, the district judge held that under the particular circumstances of the case the prisoner, having seasonably made demand, was entitled to confer with and have the aid of counsel. Pointing to the fact that the right to counsel as secured by the Sixth Amendment relates only to criminal prosecutions, judge said, ‘ … but it is equally true that that provision was inserted in the Constitution because the assistance of counsel was recognized as essential to any fair trial of a case against a prisoner.’

In Ex parte Riggins (C.C. A.) 134 F. 404, 418, a case involving the due process clause of the Fourteenth Amendment, the court said, by way of illustration, that if the state should deprive a person of the benefit of counsel, it would not be due process of law. Judge Cooley refers to the right of a person accused of crime to have counsel as perhaps his most important privilege, and after discussing the development of the English law upon that subject, says: ‘With us it is a universal principle of constitutional law, that the prisoner shall be allowed a defense by counsel.’ 1 Cooley’s Constitutional Limitations (8th Ed.) 700. The same author, as appears from a chapter which he added to his edition of Story on the Constitution, regarded the right of the accused to the presence, advice and assistance of counsel as necessarily included in due process of law. 2 Story on the Constitution ( 4th Ed.) 1949, p. 668. The state decisions which refer to the matter, invariably recognize the right to the aid of counsel as fundamental in character. E.g., People v. Napthaly, 105 Cal. 641, 644, 39 P. 29; Cutts v. State, 54 Fla. 21, 23, 45 So. 491; Martin v. State, 51 Ga. 567, 568; Sheppard v. State, 165 Ga. 460, 464, 141 S.E. 196; State v. Moore, 61 Kan. 732, 734, 60 P. 748; [287 U.S. 45, 71] State v. Ferris, 16 La. Ann. 414; State v. Simpson, 38 La. Ann. 23, 24; State v. Briggs, 58 W.Va. 291, 292, 52 S.E. 218. Expectantly, in thee end, the right thing will be done.

WHEREFORE, petitioner respectfully request this Honorable Circuit Court to appoint Counsel.

Respectfully submitted:

______________________________

Mr. Arthur L. Lockett Monday, April 6, 2009

909 Stone St. Apt #1

Port Huron, Michigan 48060

STATE OF MICHIGAN

IN THE 31st CIRCUIT COURT FOR THE COUNTY OF ST. CLAIR

OFFICE OF THE CLERK


201 McMorran Blvd.
Port Huron, MI 48060
(810) 985-203148060
(810) 985-2031

Monday, April 6, 2009

People of the City of Port Huron, Hon. Judge: D. J. Kelly

Plaintiff, Case No.: 09000113-PZ

v.

Arthur L. Lockett

Defendant.

_____________________________________/

 

ORDER GRANTING

Motion To Appoint Counsel

At a session of said court held in the City of Port Huron,

County of St. Clair, State of Michigan,

on:_______ day of _________________, 2009

PRESENT: __________________________________________

Circuit Court Judge:

This Matter having come before the Court on Defendant’s MCR 2.612 motion to set aside or modify judgment and Defendant’s Motion To Appoint Counsel and the Court having reviewed the pleadings and otherwise being duly advised in the premises;

IT IS HEREBY ORDERED that Defendant’s Motion To Appoint Counsel is Granted.

Further, it is ordered not. Dated: April _____ 2009

 

 

___________________________________________

Hon. Judge: D. J. Kelly

Case ID: 09000113PZ

 

STATE OF MICHIGAN

IN THE 31st CIRCUIT COURT FOR THE COUNTY OF ST. CLAIR

OFFICE OF THE CLERK


201 McMorran Blvd.
Port Huron, MI 48060
(810) 985-203148060
(810) 985-2031

Monday, April 6, 2009

People of the City of Port Huron, Hon. Judge: D. J. Kelly

Plaintiff, Case No.: 09000113-PZ

v.

Arthur L. Lockett

Defendant.

_____________________________________/

 

Proof of Service

NOW COMES, In Propria Persona, Defendant, Arthur L. Lockett, pursuant to

Title 28, Part V, Chapter 115 § 1746, and states: I, Mr. Arthur L. Lockett, do declare (or certify, verify, or state) under penalty of perjury, under the laws of the United States Of America, as represented by my signature below, that I, on this date of: January 15th, 2009, did served a copy of the; MCR. 2.612 Motion for relief from Judgment or Order; the Motion to Waiver or Suspension of Fees and Costs; Copy of December 15th, 2008 Michigan Court of Appeals Order, and the Ex Parte Affidavit in support, on the Plaintiff’s at the City’s attorney office.

Respectfully submitted:

______________________________

Mr. Arthur L. Lockett Monday, April 6, 2009

Pro se Defendant

909 Stone St. Apt #1

Port Huron, Michigan 48060

 

 

 

STATE OF MICHIGAN

IN THE 31st CIRCUIT COURT FOR THE COUNTY OF ST. CLAIR

OFFICE OF THE CLERK


201 McMorran Blvd.
Port Huron, MI 48060
(810) 985-203148060
(810) 985-2031

Monday, April 6, 2009

 

People of the City of Port Huron, Hon. Judge: D. J. Kelly

Plaintiff, Case No.: 09000113-PZ

v.

Arthur L. Lockett

Defendant.

_____________________________________/

 

Arthur L. Lockett’s Ex Parte Affidavit

NOW COMES, In Propria Persona, Defendant, Arthur L. Lockett, pursuant to

Title 28, Part V, Chapter 115 § 1746, and states: I, Mr. Arthur L. Lockett, declare (or certify, verify, or state) under penalty of perjury, under the laws of the United States Of America, as represented by my signature below, that the foregoing is true and correct to the best of my knowledge, information and belief, and, of which, includes statements made in, and in support of the; Motion To Appoint Counsel and proof of service.

Respectfully submitted:

______________________________

Mr. Arthur L. Lockett Monday, April 6, 2009

Pro se Defendant

909 Stone St. Apt #1

Port Huron, Michigan 48060

 

STATE OF MICHIGAN

IN THE 31st CIRCUIT COURT FOR THE COUNTY OF ST. CLAIR

OFFICE OF THE CLERK


201 McMorran Blvd.
Port Huron, MI 48060
(810) 985-203148060
(810) 985-2031

Monday, April 6, 2009

 

People of the City of Port Huron, Hon. Judge: D. J. Kelly

Plaintiff, Case No.: 09000113PZ

v.

Arthur L. Lockett

Defendant.

_____________________________________/

 

Proof of Service

SUMMONS

NOW COMES, In Propria Persona, Defendant, Arthur L. Lockett, pursuant to

Title 28, Part V, Chapter 115 § 1746, and states: I, Mr. Arthur L. Lockett, do declare (or certify, verify, or state) under penalty of perjury, under the laws of the United States Of America, as represented by my signature below, that I did cause, at or near 11:30 AM, on this date of: April 3rd 2009, to be served, by hand delivery, a copy of the Summons on the Plaintiff’s at the City’s attorney office at 100 McMorran Blvd # 1, Port Huron, MI 48060 (810) 984-9742

 

Respectfully submitted:

______________________________

Mr. Arthur L. Lockett Monday, April 6, 2009

Pro se Defendant

909 Stone St. Apt #1

Port Huron, Michigan 48060

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