United States District Court, D. Nevada
before the court is defendant Jerome Bell’s
(“defendant”) motions for appointment of counsel,
ostensibly to assist him prepare and file a § 2255
motion. (ECF Nos. 191, 192).
jury returned a three-count indictment against defendant on
January 14, 2015. (ECF No. 12). Defendant was charged with
one count of conspiracy to commit armed bank robbery, one
count of armed bank robbery, and one count of using and
carrying a firearm. Id. A superseding indictment
charging the defendant with the same offenses was returned on
January 6, 2016. (ECF No. 85). Defendant was tried in March
2016. (ECF Nos. 111, 114). After a two-day trial, the jury
found defendant guilty of all three counts. (ECF No. 120).
Defendant was sentenced on June 20, 2016. (ECF No. 144).
was sentenced to 57 months imprisonment on counts one and
two, to run concurrently, and 84 months consecutive
imprisonment on count three, for a total of 141 months, with
a total of five years of supervised release to follow. (ECF
No. 148). Defendant was also ordered to pay $4, 518 in
restitution, jointly and severally with co-defendant Deshawn
Walker. Id. Defendant unsuccessfully appealed his
conviction and sentence. (ECF No. 190).
has not filed a § 2255 motion. Defendant asks for
counsel to be appointed, apparently to help him draft and
file one. (ECF Nos. 191, 192).
currently exists no absolute, constitutional right to
appointment of counsel for petitioners making a collateral
attack on a conviction, including § 2255 proceedings.
See Pennsylvania v. Finley, 481 U.S. 551, 555,
(1987) (“[W]e have never held that prisoners have a
constitutional right to counsel when mounting collateral
attacks upon their convictions”); Sanchez v. United
States, 50 F.3d 1448, 1456 (9th Cir. 1995);
(“[T]here is no constitutional right to counsel at a
collateral, post-conviction section 2255 proceeding”);
Irwin v. United States, 414 F.2d 606 (9th Cir.
are, however, circumstances when counsel must be appointed.
Appointment of counsel to represent indigent defendants is
required in 2255 proceedings “when the complexities of
the case are such that denial of counsel would amount to a
denial of due process.” Brown v. United
States, 623 F.2d 54, 61 (9th Cir. 1980). Appointment of
counsel is also required where an evidentiary hearing must be
held, but where one is not mandated the decision to appoint
counsel is discretionary. Chaney v. Lewis, 801 F.2d
1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S.
1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234
(9th Cir. 1984) (“Such appointment of counsel becomes
mandatory when an evidentiary hearing is required.”).
circumstances that mandate appointment of counsel, 18 U.S.C.
§ 3006A(a)(2)(B) authorizes a district court to appoint
counsel to represent a petitioner seeking relief under 28
U.S.C. §§ 2241, 2254, or 2255 when “the court
determines that the interests of justice so require[.]”
See also 28 U.S.C. § 1915(a) and Rule 8(c) of
the Rules Governing Section 2255 Proceedings.
“[t]he failure of a moving party to include points and
authorities in support of the motion constitutes a consent to
denying the motion.” LCR 47-3. However, “the
standard practice of federal courts is to interpret filings
by pro se litigants liberally and to afford greater latitude
as a matter of judicial discretion.” Ricotta v.
California, 4 F.Supp.2d 961, 986 (S.D. Cal. 1998). On
the other hand, this court “lacks the power to act as a
party’s lawyer, even for pro se litigants.”
Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir.
indicates in his request for counsel that he may be entitled
to § 2255 relief because of the Supreme Court’s
decision in United States v. Davis, 139 S.Ct. 2319
(2019). (ECF Nos. 191, 192). Defendant does not contend that
his case is complex or requires an evidentiary hearing.
Id. Accordingly, the appointment of counsel is
discretionary, and the court must consider whether the
interests of justice require appointment.
court does not find that the interests of justice require
appointment of post-conviction counsel in this case, and
defendant does not present reasons to the contrary. Defendant
was able to clearly articulate his belief that his §
2255 motion would be warranted because “Davis
invalidated the 924(c)(3)(B) residual clause.” (ECF No.
192). On appeal, the government contended that armed bank
robbery is a crime of violence pursuant to the residual
clause. Id. Defendant clearly argued the effect the
Davis holding has on the government’s
argument. (ECF No. 192).
the court does not have the benefit of a pending § 2255
motion before it, and defendant does not allege complexity or
whether an evidentiary hearing will be necessary. Although
this court construes defendant’s request for counsel
liberally, it cannot create grounds for appointment from