United States District Court, D. Idaho
D. GREGORY SCHVANEVELDT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM DECISION AND ORDER
J. Lodge United States District Judge.
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.) 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
AND PROCEDURAL BACKGROUND
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.
Motion for Appointment of Counsel
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.
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).
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.
Section 2255 Motion
Standard of Review
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