Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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) ) Plaintiff/Respondent, ) ) v. ) ) CRISTOBAL CARRERA-ACOSTA, ) ) Defendant/Movant. ) _________________________________)

UNITED STATES OF AMERICA,

CR 03-01048 PHX JAT CIV 05-02121 PHX JAT MEA ORDER

On November 17, 2005, the Court received Movant's
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notice of a change in address containing a motion seeking
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appointment of counsel in this section 2255 action.
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Counsel must be appointed to an indigent defendant in
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a section 2255 action only when the Court has determined that an
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evidentiary hearing regarding the section 2255 claims must be
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held.
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See United States v. Duarte-Higareda, 68 F.3d 369, 370

(9th Cir. 1995) ("Rule 8(c) of the Rules Governing Section 2255 Proceedings in the United States District Courts states that
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`[i]f an evidentiary hearing is required, the judge shall
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appoint counsel for [an indigent] movant...'").
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Otherwise, the

decision whether to appoint counsel rests with the discretion of the Court.
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See United States v. Harrington, 410 F.3d 598, 600

(9th Cir. 2005); United States v. Berger, 375 F.3d 1223, 1226

Case 2:03-cr-01048-JAT

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(11th Cir. 2004). Respondent has asserted that Movant's section 2255 petition is barred by the applicable statute of limitations and, therefore, it does not appear that an evidentiary hearing will be required regarding the claims raised in the section 2255 petition. Because resolution of the timeliness of the section

2255 petition is not a complex legal inquiry, the Court will not exercise its discretion to appoint counsel for Movant.

THEREFORE, IT IS ORDERED that Movant's motion for appointment of counsel, filed November 17, 2005, is denied. DATED this 21st day of November, 2005.

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Case 2:03-cr-01048-JAT

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