Filed: Jul. 31, 2014
Latest Update: Jul. 31, 2014
Summary: ORDER KENDALL J. NEWMAN, Magistrate Judge. Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. This motion was reassigned to the undersigned on May 27, 2014. Multiple motions are presently pending. First, movant has submitted a declaration that makes the showing required by 28 U.S.C. 1915(a). Accordingly, the motion to proceed in forma pauperis will be granted. Second, on May 19, 2014, plaintiff's copy
Summary: ORDER KENDALL J. NEWMAN, Magistrate Judge. Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. This motion was reassigned to the undersigned on May 27, 2014. Multiple motions are presently pending. First, movant has submitted a declaration that makes the showing required by 28 U.S.C. 1915(a). Accordingly, the motion to proceed in forma pauperis will be granted. Second, on May 19, 2014, plaintiff's copy ..
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ORDER
KENDALL J. NEWMAN, Magistrate Judge.
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. This motion was reassigned to the undersigned on May 27, 2014. Multiple motions are presently pending.
First, movant has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the motion to proceed in forma pauperis will be granted.
Second, on May 19, 2014, plaintiff's copy of the May 8, 2014 stipulation and order was returned, marked "NIC" (Not in Custody). However, the order was served on movant at his address of record, and he has not been released from custody. Thus, the Clerk of the Court is directed to re-serve a copy of the May 8, 2014 order on movant.
Third, movant has requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in § 2255 proceedings. See, e.g., Irwin v. United States, 414 F.2d 606 (9th Cir. 1969). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Rules Governing Section 2255 Proceedings. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel at this time, and denies the motion without prejudice.
Finally, on July 14, 2014, respondent filed an opposition to the § 2255 motion, before the court issued a briefing order. On July 28, 2014, movant filed a request for instructions on how to proceed. Movant is granted thirty days from the date of this answer in which to file a traverse, or reply, to respondent's opposition. The traverse is movant's opportunity to cite case law in support of his motion, as well as to rebut respondent's arguments in opposition.
Accordingly, IT IS HEREBY ORDERED that:
1. Movant's motion for proceed in forma pauperis (ECF No. 110) is granted;
2. The Clerk of the Court is directed to re-serve a copy of the May 8, 2014 stipulation and order (ECF No. 107) on movant;
3. The motion for appointment of counsel (ECF No. 111) is denied without prejudice; and
4. Within thirty days from the date of this order, movant shall file his traverse or reply to respondent's opposition.
