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Schvaneveldt v. United States

United States District Court, D. Idaho

November 10, 2016

D. GREGORY SCHVANEVELDT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER

          Edward J. Lodge United States District Judge.

         INTRODUCTION

         Pending before the Court in the above-entitled matter are Petitioner's § 2255 Motion to vacate, set aside, or correct sentence and Motion for Appointment of Counsel. (CV Dkt. 1) (CR Dkt. 51.)[1] The Government has filed a response. (CV 11.) No reply brief has been filed and the time for doing so has passed. (CV Dkt. 10.) The matter is ripe for the Court's consideration.

         FACTUAL AND PROCEDURAL BACKGROUND

         On November 25, 2014, an Indictment was filed in this case charged the Petitioner D. Gregory Schvaneveldt with one count of Distribution of Child Pornography and one count of Possession of Child Pornography. (CR Dkt. 1.) On August 12, 2015, Petitioner entered a waiver of indictment and guilty plea to a Superseding Information charging him with one count of Receipt of Child Pornography. (CR Dkt. 26, 29.) The plea was pursuant to a written Plea Agreement. (CR Dkt. 20.) Thereafter, on October 27, 2015, this Court sentenced the Petitioner to 96 months of incarceration to be followed by seven years of supervised release and restitution in the amount of $10, 250. (CR Dkt. 44, 45.) No appeal was filed. On May 17, 2016, Petitioner filed his § 2255 Motion in this case. (CV Dkt. 1) (CR Dkt. 51.) Petitioner has also filed a Motion for Appointment of Counsel. (CV Dkt. 8.) The Court finds as follows.

         ANALYSIS

         1. Motion for Appointment of Counsel

         Petitioner asks for appointment of counsel pursuant to 18 U.S.C. § 3006A to represent him in this § 2255 Motion. (CV Dkt. 8.) Specifically, Petitioner asks that his previously appointed counsel, Attorney Guy Price, be reappointed.

         While there is no constitutional right to habeas counsel, an indigent petitioner seeking relief under 28 U.S.C. § 2255 may move the court for appointment of representation to pursue that relief. See 18 U.S.C. § 3006(A)(2)(B); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court has discretion to appoint counsel at any stage of a case “if the interests of justice so require.” 18 U.S.C. § 3006(A)(2); see also Rule 8(c) of the Rules Governing § 2255 Proceedings; United States v. Harrington, 410 F.3d 598, 599 (9th Cir. 2005). The interest of justice so requires where the complexities of the case are such that denial of counsel would amount to a denial of due process. See Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). “In the absence of such circumstances, a request for counsel in proceedings under section 2255 is addressed to the sound discretion of the trial court.” Dillon v. United States, 307 F.2d 445, 446-47 (9th Cir. 1962). Further, “[i]n deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

         Having reviewed the record in this case, the Court denies the request for appointment of counsel. This case is not one that is so complex that denial of counsel would amount to a denial of due process. Further, the Petitioner is not likely to succeed on the merits of his claims. The Motion for Appointment of Counsel is denied.

         2. Section 2255 Motion

         A. Standard of Review

         Section 2255 permits a federal prisoner in custody under sentence to move the court that imposed the sentence to vacate, set aside, or correct the sentence on the grounds that:

the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack ....

§ 2255(a); see also Hill v. United States, 368 U.S. 424, 426-27 (1962) (articulating the four grounds upon which ...


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