Filed: Jul. 02, 2019
Latest Update: Jul. 02, 2019
Summary: OPINION AND ORDER DENYING DEFENDANT'S REQUESTS FOR THE APPOINTMENT OF COUNSEL BERNARD A. FRIEDMAN , Senior District Judge . This matter is presently before the Court on defendant's requests for the appointment of counsel [docket entries 201 and 203]. Defendant asks that he be appointed counsel pursuant to 28 U.S.C. 3006A "in regards to a `Dimaya' claim" [docket entry 201 at 2], which refers to the Supreme Court's recent decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Defendant
Summary: OPINION AND ORDER DENYING DEFENDANT'S REQUESTS FOR THE APPOINTMENT OF COUNSEL BERNARD A. FRIEDMAN , Senior District Judge . This matter is presently before the Court on defendant's requests for the appointment of counsel [docket entries 201 and 203]. Defendant asks that he be appointed counsel pursuant to 28 U.S.C. 3006A "in regards to a `Dimaya' claim" [docket entry 201 at 2], which refers to the Supreme Court's recent decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Defendant ..
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OPINION AND ORDER DENYING DEFENDANT'S REQUESTS FOR THE APPOINTMENT OF COUNSEL
BERNARD A. FRIEDMAN, Senior District Judge.
This matter is presently before the Court on defendant's requests for the appointment of counsel [docket entries 201 and 203]. Defendant asks that he be appointed counsel pursuant to 28 U.S.C. § 3006A "in regards to a `Dimaya' claim" [docket entry 201 at 2], which refers to the Supreme Court's recent decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Defendant presumably intends to assert this claim in a motion challenging his sentence under 28 U.S.C. § 2255.
Defendant has already filed a motion to vacate his sentence under § 2255 on other grounds, and the Court denied this motion on May 24, 2018. Defendant appealed, and on February 20, 2019, the Sixth Circuit denied his application for a certificate of appealability and denied as moot his motions for leave to proceed in forma pauperis and for the appointment of counsel.
Under § 2255(f), "[a] 1-year period of limitation shall apply to a motion under this section." The applicable limitation period for a § 2255 motion that raises a claim based on a recent Supreme Court case, such as Dimaya, would be one year from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). Moreover, § 2255(h) provides that
[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
* * *
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
The Court denies defendant's requests for the appointment of counsel because at this point a § 2255 motion asserting a Dimaya claim would be time-barred under § 2255(f)(3). Dimaya was decided on April 17, 2018. Defendant had one year from this date, i.e., until April 17, 2019, to file a § 2255 motion challenging his sentence on this basis. Further, because defendant has already filed a § 2255 motion, albeit on a different basis, under subsection (h) he must obtain permission from the Sixth Circuit to file a second or successive § 2255 motion. Defendant has not shown that he has received this permission from the Sixth Circuit. Accordingly,
IT IS ORDERED that defendant's requests for the appointment of counsel are denied.
