October 28, 2013
UNITED STATES OF AMERICA, Plaintiff,
JACK DANIELS, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
On April 30, 2013, the Court sentenced defendant to 168 months in prison. This matter is before the Court on defendant's letter (Doc. #338 filed September 3, 2013), which the Clerk docketed as a motion to reduce sentence, and defendant's Motion For Appointment Of Counsel (Doc. #339) filed September 27, 2013. In his letter, defendant asks the Court to modify his sentence because he is a low-level, nonviolent drug offender. Defendant also suggests that he is not guilty of the charged conspiracy. After a defendant has exhausted his direct appeal in a criminal action, his exclusive remedy for raising a challenge to his conviction and sentence is under 28 U.S.C. § 2255 unless that remedy is inadequate or ineffective. See United States v. McIntyre , 313 Fed.Appx. 160, 162 (10th Cir. 2009); Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). The Court could construe defendant's letter as a motion to vacate, set aside or correct his sentence under Section 2255. In light of the restrictions which Section 2255 imposes on a second or successive motion, however, the Court declines to do so. If defendant desires to file a Section 2255 motion based on the grounds in his letter, or otherwise, he may do so. Defendant should note, however, that absent certain circumstances, a one-year limitation from the date on which the judgment is final applies. Defendant should also note that D. Kan. Rule 9.1 sets forth the procedures for filing such a motion.
Defendant also asks the Court to appoint counsel. Defendant has no constitutional or statutory right to appointment of counsel in the prosecution of a Section 2255 motion unless the Court determines that an evidentiary hearing is required. Rule 8(c) of the Rules Governing Section 2255 Proceedings; see Pennsylvania v. Finley , 481 U.S. 551, 555 (1987); United States v. Evans , 51 F.3d 287, 1995 WL 139420, at *1 (10th Cir. 1995); Swazo v. Wy. Dep't of Corr. State Penitentiary Warden , 23 F.3d 332, 333 (10th Cir. 1994). In determining whether to appoint counsel in a civil case, the Court considers several factors including (1) the merit of the litigant's claims; (2) the nature of the factual issues raised in the claims; (3) the litigant's ability to present his or her claims; and (4) the complexity of the claims involved. See Williams v. Meese , 926 F.2d 994, 996 (10th Cir. 1991). Here, at this preliminary stage before defendant has filed a Section 2255 motion, the Court declines to appoint counsel.
IT IS THEREFORE ORDERED that defendant's letter (Doc. #338 filed September 3, 2013), which the Clerk docketed as a motion to reduce sentence, be and hereby is OVERRULED.
IT IS FURTHER ORDERED that defendant's Motion For Appointment Of Counsel (Doc. #339) filed September 27, 2013 be and hereby is OVERRULED.