Filed: Jun. 08, 2017
Latest Update: Jun. 08, 2017
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Movant Javier Hernandez-Lopez is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. 2255. 1 Movant's original motion was filed on June 8, 2016. ECF No. 54. Then, on June 24, 2016, movant sought to amend his motion. ECF No. 56. On August 15, 2016, movant requested appointment of counsel. ECF No. 58. Finally, the court notes that the last mailing sent to movant was returned as unde
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Movant Javier Hernandez-Lopez is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. 2255. 1 Movant's original motion was filed on June 8, 2016. ECF No. 54. Then, on June 24, 2016, movant sought to amend his motion. ECF No. 56. On August 15, 2016, movant requested appointment of counsel. ECF No. 58. Finally, the court notes that the last mailing sent to movant was returned as undel..
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ORDER
ALLISON CLAIRE, Magistrate Judge.
Movant Javier Hernandez-Lopez is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.1 Movant's original motion was filed on June 8, 2016. ECF No. 54. Then, on June 24, 2016, movant sought to amend his motion. ECF No. 56. On August 15, 2016, movant requested appointment of counsel. ECF No. 58. Finally, the court notes that the last mailing sent to movant was returned as undeliverable on May 19, 2017. ECF No. 61.
I. Motion to Amend
Movant's motion to amend will be granted. It is unclear whether movant seeks to pursue a claim under Johnson v. United States, 135 S.Ct. 2551 (2015) in addition to his original claims, or intends to substitute a Johnson motion for the original § 2255 motion. Movant is directed to submit an amended motion under § 2255, containing all claims that he wishes to pursue, within thirty days of this order's entry.
II. Motion to Appoint Counsel
The Sixth Amendment's right to counsel does not apply in habeas corpus actions or actions proceeding under§ 2255. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) Discretion to appoint counsel lies with the district court, unless an evidentiary hearing is required. See Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). An evidentiary hearing is not currently necessary and there are no exceptional circumstances that otherwise warrant appointing counsel. Accordingly, the motion for appointment of counsel is denied without prejudice.
III. Failure to Keep the Court Apprised of Current Address
As noted above, the last mailing sent to movant from the court was returned as undeliverable. ECF No. 61. Local Rule 183(b) provides:
A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute.
Sixty-three days have not yet elapsed. Movant is warned, however, that dismissal of this motion will be recommended if he fails to update his address by July 21, 2017.
IV. Conclusion
Accordingly, it is HEREBY ORDERED that:
1. Movant's motion to amend (ECF No. 56) is granted. An amended motion under 28 U.S.C. § 2255 shall be filed within 30 days;
2. Movant's motion to appoint counsel (ECF No. 58) is denied;
3. Movant must apprise the court of his updated address by July 21, 2017.
