United States District Court, D. Nevada
ORDER (MOTS APPOINT COUNSEL - ECF NOS. 107, 110; MOT
STATUS CHECK - ECF NO. 109)
PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendant Darrell Conners'
Motions for Appointment of Counsel (ECF Nos. 107, 110) and
Motion for Status Check (ECF No. 109). These Motions are
referred to the undersigned pursuant to 18 U.S.C. §
3006A(a)(2)(B) and LR and 1-7(c) of the Local Rules of
Conners is a pro se prisoner in the custody of the
Federal Bureau of Prisons. He pled guilty to two counts of
Interfering with Commerce by Armed Robbery and Aiding and
Abetting and one count of Use of a Firearm During and in
Relation to a Crime of Violence. See Judgment (ECF
No. 73), entered Jan. 28, 2013. He filed a Motion for Nun Pro
Tunc Modification of the Judgment and Conviction Sentence
(ECF No. 74) in January 2014, which the court construed as a
motion pursuant to 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. District Judge Robert C.
Jones denied the motion on May 2014 Order (ECF No. 76). In
December 2014, Conners asked the court to appoint him
counsel. Mot. (ECF No. 78). Judge Jones denied the motion as
untimely. Jan. 2015 Order (ECF No. 79). Mr. Conners filed his
second § 2255 Motion (ECF Nos. 81) in May 2015. Judge
Jones denied the second motion instructing Conners that he
must ask the Court of Appeals for permission to file a
successive motion. June 2015 Order (ECF No. 84).
September 2017, the Court of Appeals granted Conners'
application to file a second or successive 28 U.S.C. §
2255, finding that his application made a prima facie showing
for relief under Johnson v. United States, 135 S.Ct.
2551 (2015). See Order of Court of Appeals (ECF No.
108). The Order instructed the Clerk of the Court of Appeals
to transfer his application to the District of Nevada to be
processed as a § 2255 motion. The transfer is now
complete and his § 2255 Motion (ECF No. 111) is pending
in this court.
Conners's current motions ask the court to appoint
counsel to assist in his federal habeas corpus proceedings.
He also asks for a status check because he has not heard
anything since from this court since the Court of Appeals
returned his case here.
is no constitutional right to appointed counsel in federal
habeas corpus proceedings. Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Sanchez v. United States,
50 F.3d 1448, 1456 (9th Cir. 1995). However, an indigent
petitioner seeking relief under 28 U.S.C. § 2255 may ask
the court to appoint counsel to pursue that relief. 18 U.S.C.
§ 3006A(a)(2)(B). The court has discretion to appoint
counsel to any financially eligible person when the interests
of justice so require. Id.; see also LaMere v.
Risley, 827 F.2d 622, 626 (9th Cir. 1987). The District
of Nevada issued a general order providing for the
appointment of counsel to certain offenders with career
criminal or armed career criminal status who may qualify for
federal habeas relief under 28 U.S.C. § 2255 in light of
the Johnson opinion. See First Amended
General Order 2015-03 (D. Nev. 2016). The court appointed the
Office of the Federal Public Defender for the District of
Nevada for the limited purpose of determining whether these
defendants may qualify for relief under § 2255.
the court finds that the interests of justice require the
appointment of counsel. Mr. Conners represents that he has
limited education and the issue involved in the Ninth's
Circuit decision allowing a second or successive § 2255
motion involves application of a new substantive complex area
of constitutional law that has retroactive effect in cases on
collateral review. The court denied an earlier motion for
appointment of counsel because Conners had not yet received
permission to file a successive motion. The Court of Appeals
has now granted his application to file a successive §
2255 motion and found that he made a prima facie showing for
relief under Johnson. Counsel will be of assistance
in this matter. Mr. Conners was previously determined to be
financially unable to retain counsel under § 3006A. The
court therefore grants Conners' motion for appointment of
counsel for the limited purpose of his § 2255 motion and
provisionally appoints the Office of the Federal Public
Defender for the District of Nevada. The court notes that the
Federal Public Defender previously represented him in the
underlying criminal matter.
Conners' motion for status check is granted to the
limited extent this Order explains the status of the case.
Due to the large number of criminal and civil actions pending
before the court, the Clerk of the Court is unable to respond
in writing to individual inquiries regarding the status of
your case. The court will notify you when any action is taken
in your case. As long as you keep the court apprised of your
current address, you will receive all court filings and
decisions that might affect the status of your case. If you
have not submitted a document required in your case, the
court will notify you.
IT IS ORDERED:
Defendant Darrell Conners' Motions for Appointment of
Counsel (ECF Nos. 107, 110) are GRANTED. The
Federal Public Defender is provisionally appointed to
represent Mr. Conners.
Federal Public Defender shall have until April 19,
2018, to undertake direct representation of
defendant or to file notice with the court indicating an
inability to represent defendant in these proceedings. If the
Federal Public Defender is unable to represent defendant,
then the court shall appoint alternate counsel.
Clerk of the Court shall electronically SERVE the Federal
Public Defender with a copy of this Order.
Defendant Darrell Conners' Motion for Status Check (ECF
No. 109) is GRANTED to the limited extent