ORDER GRANTING MOTION FOR APPOINTMENT OF COUNSEL, DIRECTING RESPONSE, AND REFERRING TO MAGISTRATE JUDGE MORRIS

THOMAS L. LUDINGTON, District Judge.

Petitioner Richardson was sentenced to 262 months after being convicted of possession of nine grams of cocaine base with intent to distribute and being a felon in possession of a firearm. ECF No. 56. Petitioner was sentenced as a career offender. On appeal, the Sixth Circuit overturned Petitioner's cocaine conviction. ECF No. 63. A public defender was appointed to represent Petitioner. ECF No. 69. Pursuant to a plea agreement, Petitioner pleaded guilty on October 13, 2015. ECF No. 77, 79. He was sentenced on December 17, 2015, to 151 months of incarceration on the cocaine count and 120 months of incarceration of the firearm count, to be served concurrently. ECF No. 86. Judgment was entered on December 30, 2015.

Now, Petitioner, through the attorney appointed to represent him after his conviction was overturned, has filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. ECF No. 88. Petitioner has concurrently filed a motion for appointment of counsel. ECF No. 88.

In the motion to vacate, Petitioner challenges his status as a career offender. He asserts that he was sentenced as a career offender because he had two prior felony controlled substance convictions. However, he argues that he does not have two qualifying prior convictions, relying on Mathis v. United States, 136 S.Ct. 2243 (2016) and United States v. Hinkle, 2016 WL 4254372 (5th Cir. 2016). In Mathis, the Supreme Court explained how to determine if a state conviction provides a basis for imposition of career offender status under the Armed Career Criminal Act:

136 S. Ct. at 2257.

Although Mathis concerned application of the Armed Career Criminal Act, not the sentencing guidelines, the Fifth Circuit applied Mathis's reasoning to the sentencing guidelines in Hinkle. The Fifth Circuit found that Hinkle's prior controlled substance conviction criminalized more conduct than was included within the elements of the relevant sentencing guidelines. For that reason, the controlled substance conviction could not serve as a predicate offense for career offender status under the guidelines.

Petitioner argues that the approach in Hinkle should be adopted by this Court and used to analyze his prior controlled substance convictions. If that is done, he argues, then his prior drug convictions could not serve as predicate offenses for career offender status.

Petitioner's motion for appointment of counsel will be granted. Appointment of counsel in habeas cases is discretionary unless an evidentiary hearing is required. United States v. Boyd, No. 04-80391, 2011 WL 318112, at *1 (E.D. Mich. Jan. 31, 2011). In determining whether appointment is appropriate, courts consider the viability of the claims made, the nature of complexity of the case, and the petitioner's ability to present his or her claims. Sellers v. United States, 316 F.Supp.2d 516, 522 (E.D. Mich. 2004). Here, Petitioner has raised a colorable argument that Hinkle should be adopted. This is a complicated and rapidly changing area of law. Accordingly, appointment of counsel will assist the Court in framing the issues and thoroughly litigating the merits of Petitioner's argument. For similar reasons, the Government will be directed to respond to Petitioner's motion to vacate. Finally, Petitioner's motion to vacate will be referred to Magistrate Judge Morris.

Accordingly, it is ORDERED that Petitioner Richardson's motion to appoint counsel, ECF No. 90, is GRANTED.

It is further ORDERED that this matter is REFERRED to Magistrate Judge Patricia T. Morris for the purpose of appointing Petitioner Richardson counsel pursuant to the Criminal Justice Act.

It is further ORDERED that Petitioner Richardson's motion to vacate, ECF No. 88, is REFERRED to Magistrate Judge Patricia T. Morris.

It is further ORDERED that the Government is DIRECTED to respond to Petitioner Richardson's motion to vacate on or before January 27, 2017.