United States District Court, W.D. North Carolina, Asheville Division
ORDER
MARTIN
REIDINGER UNITED STATES DISTRICT JUDGE.
THIS
MATTER is before the Court on the Defendant's
letter, which the Court construes as a motion to modify
sentence and a motion for the appointment of counsel. [Doc.
610].
On
October 3, 2016, the Defendant pled guilty pursuant to a
written plea agreement to one count of conspiracy to
distribute and to possess with intent to distribute a
quantity of methamphetamine, in violation of 21 U.S.C. §
846. On March 30, 2017, the Court sentenced the Defendant to
a term of 128 months' imprisonment. [Doc. 576]. The
Defendant did not file a direct appeal.
The
Court received the Defendant's present motion on May 6,
2019. In his motion, the Defendant makes a series of
contentions challenging the validity of his guilty plea, the
calculation of his Guidelines range, and the conduct of his
trial counsel. Most notably, he contends that (1) he directed
his attorney to file a direct appeal immediately after
sentencing, but his attorney failed to do so and (2) the
Defendant mailed a motion to vacate pursuant to 28 U.S.C.
§ 2255 to the Clerk's Office in January 2018, but
the motion was either not filed upon delivery, was not mailed
by BOP mailroom staff or was lost by the U.S. Postal Service.
The Defendant requests, among other things, that his motion
to vacate “be found and processed” by the courts
and that an attorney be appointed to represent him in that
§ 2255 proceeding. [Doc. 610].
The
Court has no record of the Defendant filing a § 2255
motion in January 2018 or any other time. If the Defendant
wishes to have any of his claims heard, he must file a proper
motion to vacate, following the form for § 2255 motions
which has been approved for use in this judicial district.
See Rule 2(c), Rules Governing Section 2255
Proceedings for the United States District Courts.
Accordingly, the Court will direct the Clerk of Court to send
the Defendant the appropriate motion form.
In
filing such motion, the Defendant should address the
timeliness of his filing. Section 2255 provides for a
one-year statute of limitations period for the filing of a
motion to vacate. The limitation period runs from the latest
of:
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4). The Defendant must show
either that his motion is timely under one of these
subsections or that the circumstances warrant equitable
tolling. Equitable tolling is available only when a §
2255 petitioner demonstrates “(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (internal quotation marks omitted). Equitable
tolling is limited to “'rare instances where - due
to circumstances external to the party's own conduct - it
would be unconscionable to enforce the limitation period
against the party and gross injustice would
result.'” Whiteside v. United States, 775
F.3d 180, 184 (4th Cir. 2014) (en banc) (quoting Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc)),
cert. denied, 135 S.Ct. 2890 (2015).
With
respect to the Defendant's request for the appointment of
counsel, prisoners have no constitutional right to counsel in
a post-conviction proceeding. Pennsylvania v.
Finley, 481 U.S. 551, 555-56 (1987); Rouse, 339
F.3d at 250. Nonetheless, the Court may appoint counsel to
represent a habeas petitioner when the interests of justice
so require and the petitioner is financially unable to obtain
representation. See 18 U.S.C. § 3006A(a)(2)(B).
In the instant case, however, the Defendant has failed to
demonstrate that the interests of justice warrant the
appointment of counsel. See United States v. Riley,
21 Fed.Appx. 139, 141-42 (4th Cir. 2001). Accordingly, the
Defendant's motion for appointment of counsel is denied.
IT
IS, THEREFORE, ORDERED that the Defendant's
letter, which the Court construes as a motion to modify
sentence [Doc. 610], is DENIED WITHOUT
PREJUDICE.
IT
IS FURTHER ORDERED that the Defendant's motion
for the appointment of ...