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

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RP

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Joseph Nicholas Fuentes, Defendant/Movant.

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No. CR 03-764-PHX-JAT No. CV 08-348-PHX-JAT (JRI) ORDER

Movant Joseph Nicholas Fuentes, who is confined in the United States PenitentiaryVictorville in Adelanto, California, has filed a pro se "Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence By A Person In Federal Custody" (Doc. #1252), a "Motion For Appointment Of Counsel" (Doc. #1254), and an "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)" (Doc. #1258). The Court will require a response to the § 2255 Motion and deny the Appointment of Counsel Motion and the Application To Proceed In Forma Pauperis. I. Motion Under 28 U.S.C. § 2255 By jury verdict on January 26, 2005, Movant was found guilty of Murder, First Degree, Aid and Abet, in violation of 18 U.S.C. §§ 1111 and 2; and Conspiracy to Commit Murder, Aid and Abet, in violation of 18 U.S.C. §§ 1117, 1111, and 2. On May 31, 2005, the Court sentenced Movant to two concurrent life sentences, with credit for time served, followed by two concurrent five-year terms of supervised release. The terms of Movant's

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imprisonment were to run consecutively by judgment to the terms of imprisonment in another criminal case, CR 99-227-PHX-ROS. Movant alleges two grounds in his § 2255 Motion. In Ground One, he alleges ineffective assistance of counsel. In Ground Two, he alleges prosecutor misconduct. A response to the § 2255 Motion will be required. II. Motion for Appointment of Counsel On February 22, 2008, Movant filed a "Motion For Appointment Of Counsel" (Doc. #1254), in which he requests that this Court "authorize the retention of and payment for counsel" to assist him in his "habeas proceedings." In support of his Motion, Movant alleges that as a federal prisoner, he is unable to contact the potential witness "stated" in his §2255 Motion. Appointment of counsel is mandatory pursuant to Rule 8(c) of the Rules Governing § 2255 Cases when an evidentiary hearing is required, United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 1995), and when necessary for effective discovery pursuant to Rule 6(a) of the Rules Governing § 2255 Cases. At this early juncture, neither are required. Appointment is also required when the complexities of the case are such that lack of counsel would equate with the denial of due process. Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980) (citing Dillon v. United States, 307 F.2d 445, 446-47 (9th Cir. 1962)). There is presently no indication that lack of counsel would result in the denial of due process. Otherwise, the court must determine whether the interests of justice require the appointment of counsel. Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990) (quoting 18 U.S.C. § 3006A(a)(2)(B)). This determination is guided by an assessment of petitioner's ability to articulate his claim, the complexity of the legal issues, and the likelihood of success on the merits. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). Petitioner has articulated his claims wel,l and the legal issues are not inherently complex. At this time, the Court will deny his request without prejudice to renewal should circumstances change. In so doing, the Court notes that prior to filing his § 2255 Motion, Movant filed two
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motions for the appointment of counsel for habeas proceedings (Doc. ## 1203 and 1206), both of which were denied by Order filed August 14, 2007 (Doc. #1207). III. Application To Proceed In Forma Pauperis On March 12, 2008, Movant filed an "Application To Proceed In Forma Pauperis By A Prisoner (Habeas)" (Doc. #1258), which will be denied as moot because no filing fee is required for a § 2255 Motion. IV. Warnings A. Address Changes

Movant must file and serve a notice of a change of address 10 days before the move is effective, if practicable. See LRCiv 83.3(d). Movant shall not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal. B. Copies

Movant must serve the United States Attorney for the District of Arizona a copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must be accompanied by a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Movant must submit an additional copy of every filing for use by the Court. LRCiv 5.4. The Court may strike any filing that fails to comply with these requirements. C. Possible dismissal

Movant is warned that failure to timely comply with every provision of this Order, including these warnings, may result in dismissal of this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss action for failure to comply with any order of the Court). IT IS ORDERED: (1) Movant's "Motion For Appointment Of Counsel" (Doc. #1254) is denied

without prejudice. (2) Movant's "Application To Proceed In Forma Pauperis By A Prisoner

(Habeas)" (Doc. #1258) is denied as moot. (3) The Clerk of Court must deliver copies of the "Motion Under 28 U.S.C. §
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2255 To Vacate, Set Aside Or Correct Sentence By A Person In Federal Custody" (Doc. #1252 in CR 03-764-PHX-JAT) and this Order to the United States Attorney for the District of Arizona. (4) Within 60 days from the date of service of the § 2255 Motion, the United States

Attorney for the District of Arizona must answer the Motion. The United States Attorney may file an answer limited to relevant affirmative defenses, including but not limited to, statute of limitations, procedural bar, or non-retroactivity. If the answer is limited to affirmative defenses, only those portions of the record relevant to those defenses need be attached to the answer. Failure to set forth an affirmative defense in an answer may be treated as a waiver of the defense. Day v. McDonough, 126 S.Ct. 1675, 1684 (2006). If not limited to affirmative defenses, the answer must fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2255 Cases. (5) (6) Movant may file a reply within 30 days from the date of service of the answer. The matter is referred to Magistrate Judge Jay R. Irwin pursuant to Rules 72.1

and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. DATED this 3rd day of June, 2008.

Case 2:03-cr-00764-JAT

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