Filed: May 07, 2014
Latest Update: May 07, 2014
Summary: ORDER WILLIAM B. SHUBB, District Judge. On June 7, 2011, United States District Judge Edward J. Garcia sentenced defendant Edward Mallory to a term of 292 months imprisonment pursuant to a plea agreement. (Docket No. 58.) On November 1, 2012, defendant filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. (Docket No. 65.) Judge Garcia denied the petition on the basis that it was filed outside of the one-year statute of limitations set forth by 2255. (D
Summary: ORDER WILLIAM B. SHUBB, District Judge. On June 7, 2011, United States District Judge Edward J. Garcia sentenced defendant Edward Mallory to a term of 292 months imprisonment pursuant to a plea agreement. (Docket No. 58.) On November 1, 2012, defendant filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. (Docket No. 65.) Judge Garcia denied the petition on the basis that it was filed outside of the one-year statute of limitations set forth by 2255. (Do..
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ORDER
WILLIAM B. SHUBB, District Judge.
On June 7, 2011, United States District Judge Edward J. Garcia sentenced defendant Edward Mallory to a term of 292 months imprisonment pursuant to a plea agreement. (Docket No. 58.) On November 1, 2012, defendant filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket No. 65.) Judge Garcia denied the petition on the basis that it was filed outside of the one-year statute of limitations set forth by § 2255. (Docket No. 66.) Defendant appealed the denial of his petition, and the Court of Appeals remanded the appeal to the district court on April 5, 2013, with instructions to grant or deny a certificate of appealability. (Docket No. 74.)
After Judge Garcia retired in 2013, this action was reassigned to the undersigned district judge. (Docket No. 75.) The court denied defendant a certificate of appealability on July 11, 2013. (Docket No. 76.) The Court of Appeals nonetheless granted the certificate of appealability on October 18, 2013 and vacated the district court's denial of defendant's § 2255 petition on November 27, 2013. (Docket No. 78.) It remanded the action to the district court with instructions to permit defendant to present his position on the timeliness of the petition. (Id.)
To comply with the mandate of the Court of Appeals, on February 3, 2014, this court directed the United States to respond to defendant's § 2255 petition within fifteen days and directed defendant to file a reply within thirty days from the filing of the United States' response. (Docket No. 79.) The United States filed a response to defendant's motion, (Docket No. 80), but defendant failed to file a reply.
Considering that defendant went to the trouble of appealing from this court's failure to afford him the opportunity to oppose the dismissal of his petition, the fact that he did not avail himself of that opportunity when it was given to him strongly suggests that he lacks the sophistication required to represent himself competently in this matter. Accordingly, the court will appoint John Balazs of the Law Office of John Balazs as counsel in this matter. Counsel is directed to file a reply to the United States' response within thirty days from the date this Order is signed.
IT IS SO ORDERED.
