Free Order on Motion to Appoint Counsel - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America,

) ) Plaintiff, ) ) v. ) ) ) Rafael Cruz-Ayon, ) ) Defendant. _________________________________ )

No. CR 03-1096-PHX-SMM CV 05-2576-PHX-SMM (BPV) ORDER

Pending before the Court is Defendant's Motion for Court-Appointed Attorney for Representation at the Evidentiary Hearing scheduled to take place on January 16, 2007 at 9:00 a.m. (Dkt. 63.) Defendant requests the appointment of a bilingual attorney to represent him at the evidentiary hearing on January 16, 2006. (Id.) Pursuant to Rule 8(c) of the Rules Governing Section 2255 Proceedings, "[i]f an evidentiary hearing is required, the judge shall appoint counsel for [an indigent] movant." Rule 8(c) of the Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. §2255; see also United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 1995) (Rule 8(c) makes the appointment of counsel mandatory when evidentiary hearings are required). Defendant has submitted documents to the Court demonstrating that he is indigent. See Dkt. 67 (Motion to Proceed in Forma Pauperis and inmate account statement). Therefore, the

Case 2:03-cr-01096-SMM

Document 69

Filed 12/04/2006

Page 1 of 2

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Court will appoint a bilingual attorney, Mr. Atmore L. Baggot, to represent Defendant at the evidentiary hearing. In the instant Motion, Defendant also requests that "the Court conduct an on-the-record examination of appointed counsel to determine whether there may be any matters of conflict which might prevent appointed counsel from representing [him] against his former attorney of record." (Dkt. 63 at 1.) The Court finds that this issue is not yet ripe, because Defendant has not discussed the issue with his newly-appointed counsel (Mr. Baggot), and thus currently has no reason to believe that Mr. Baggot may be conflicted. The Court therefore denies this request without prejudice to Defendant re-raising the request at the evidentiary hearing after he discusses the issue of conflict with Mr. Baggot. IT IS HEREBY ORDERED GRANTING Defendant's Motion for Court-Appointed Attorney for Representation at Evidentiary Hearing. (Dkt. 63.) IT IS FURTHER ORDERED GRANTING Defendant's Application to Proceed In Forma Pauperis. (Dkt. 67.) IT IS FURTHER ORDERED appointing attorney Atmore L. Baggot, pursuant to the Criminal Justice Act, as attorney of record for Defendant Rafael Cruz-Ayon for all further proceedings through the evidentiary hearing to be held before the Honorable Stephen M. McNamee on January 16, 2007 at 9:00 a.m. in Courtroom 605, 401 W. Washington, Street, Phoenix, Arizona. IT IS FURTHER ORDERED that the Clerk of Court provide copies of this Order to counsel for the United States, to the Defendant, Rafael Cruz-Ayon, and to appointed CJA counsel, Atmore L. Baggot, [email protected]. DATED this 4th day of December, 2006.

-2Case 2:03-cr-01096-SMM Document 69 Filed 12/04/2006 Page 2 of 2