OpenJurist

14 F3d 602 Rayford v. Morgan

Robert L. RAYFORD, Petitioner-Appellant,
v.
Jack MORGAN, Warden, Respondent-Appellee.

No. 92-5474.

United States Court of Appeals, Sixth Circuit.

Dec. 8, 1993.

14 F.3d 602
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before: KEITH and SILER, Circuit Judges, and CHURCHILL, Senior District Judge*

ORDER

2

Petitioner-Appellant, Robert L. Rayford, a Tennessee prisoner, appeals from the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. Rayford proceeded pro se before the district court. Counsel has been appointed to represent him on appeal.

3

In the supplemental brief on appeal, counsel argues that the failure to provide counsel for Rayford at the evidentiary hearing held before the magistrate judge is reversible error. He cites Rule 8(c) of the Rules Governing Section 2254 Cases In The United States District Courts. Rule 8(c) provides as follows:

4

If an evidentiary hearing is required the judge shall appoint counsel for a petitioner who qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g) and the hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation. These rules do not limit the appointment of counsel under 18 U.S.C. Sec. 3006A at any stage of the case if the interest of justice so requires.

5

The record does not indicate that Rayford was informed by the district court that he had the right to have counsel appointed to represent him.

6

This case is remanded to the district court for the appointment of the same or different counsel. The district court may take into consideration that current counsel is from Sevierville, Tennessee. Following appointment of counsel, all issues shall be considered de novo.

*

The Honorable James P. Churchill, United States District Court for the Eastern District of Michigan, sitting by designation