United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil, United States District Judge.
March 20, 2012, the Court sentenced defendant to 235 months
in prison. On February 9, 2015, under Amendment 782 to the
Sentencing Guidelines, the Court reduced defendant's
sentence to 188 months. See Order Regarding Motion For
Sentence Reduction Pursuant To 18 U.S.C. §
3582(c)(2) (Doc. #136). The Court overruled
defendant's initial motion to vacate his sentence under
28 U.S.C. § 2255 and dismissed successive motions for
relief. See Memorandum And Order (Doc. #159) filed
July 28, 2017; Memorandum And Order (Doc. #150)
filed October 25, 2016; Memorandum And Order (Doc.
#140) filed October 15, 2015. This matter is before the Court
on defendant's Motion For Appointment Of Counsel In
Light Of The Enactment Of The First Step Act Of 2018 Making
The Fair Sentencing Act Of 2010 Retroactive And The Recent
Investigation Of AUSA Terra Morehead Concerning Her
Misconduct (Doc. #166) filed July 18, 2019 and
defendant's Motion For Appointment Of Counsel
Pursuant To Standing Order 18-3 And 18 U.S.C. §
3006A (Doc. #167) filed September 9, 2019. For reasons
stated below, the Court overrules defendant's motions.
seeks appointment of counsel to assist with the filing of
several motions. 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). Applying
these factors to each of defendant's proposed claims, the
Court declines to appoint counsel.
First Step Act Of 2018
states that counsel is necessary to assist in a motion for
relief under the First Step Act of 2018, Pub. Law 115-391,
132 Stat. 5194, which retroactively applies the revised
statutory penalties of the Fair Sentencing Act of 2010, Pub.
Law 111-220, 124 Stat. 2372. See First Step Act
§ 404(a) (First Step Act applies to sentences for
violation of federal criminal statute with statutory
penalties modified by Fair Sentencing Act of 2010 that was
committed before August 3, 2010). Effective August 3, 2010,
the Fair Sentencing Act reduced the amount of cocaine base
needed to trigger certain statutory minimum and maximum
sentences. See 21 U.S.C. § 841(b)(1)(A)(iii)
(raising from 50 to 280 grams amount of cocaine base needed
to trigger statutory range of 10 years to life in prison); 21
U.S.C. § 841(b)(1)(B)(iii) (raising from five to 28
grams amount of cocaine base needed to trigger statutory
range of five to 40 years in prison). Under the First Step
Act of 2018, the Court may impose a reduced sentence as if
the revised statutory penalties of the Fair Sentencing Act
were in effect at the time the covered offense was committed.
First Step Act § 404(b).
defendant pled guilty to conspiracy to manufacture, to
possess with intent to distribute and to distribute five
grams or more of cocaine base, subject to the statutory
imprisonment range of five to 40 years under 21 U.S.C. §
841(b)(1)(B). See Petition To Enter Plea Of Guilty And
Order Entering Plea (Doc. #29) filed February 25, 2011
at 2-3 (plea under § 841(b)(1)(B) with statutory range
of five to 40 years); Superseding Information (Doc.
#27) filed February 25, 2011 at 1, 3 (same). Even so, at
sentencing, the Court applied the revised statutory penalties
under the Fair Sentencing Act of 2010. See Judgment In A
Criminal Case (Doc. #95) filed March 20, 2012 at 1
(“The defendant pleaded guilty to a Class B felony
subject to the penalty provisions of 21 U.S.C. §
841(b)(1)(B); however, the court applies the penalty
provisions for a Class C felony, under 21 U.S.C. §
841(b)(1)(C), as determined by the Fair Sentencing Act of
2010.”). In particular, because defendant pled guilty
to a conspiracy involving only five grams of cocaine base,
the Court applied the statutory imprisonment range of zero to
20 years under 21 U.S.C. § 841(b)(1)(C). See
id.; see also Transcript Of Sentencing (Doc.
#106) filed June 5, 2012 at 5-6, 24-25, 27 (government
explanation that statutory maximum under Fair Sentencing Act
is 240 months). Because defendant was sentenced based on the
revised statutory penalties of the Fair Sentencing Act of
2010, his proposed motion under the First Step Act lacks
merit. See First Step Act § 404(c) (no court
shall entertain motion under this section if sentence
previously imposed in accordance with amendments in sections
2 and 3 of Fair Sentencing Act). For this reason and because
the Fair Sentencing Act claim is not particularly complex
factually or legally, and defendant is able to adequately
present the claim, the Court overrules defendant's
request for counsel on this claim.
Prosecutorial Misconduct Claims
states that counsel is necessary to investigate “any
relevant claims [of] prosecutorial misconduct”
involving Assistant United States Attorney
(“AUSA”) Terra Morehead. Doc. #166 at 2. After a
defendant has exhausted his direct appeal in a criminal
action, his exclusive remedy for raising a challenge to his
sentence is under Section 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.
noted, defendant has filed multiple Section 2255 motions.
Accordingly, under the Antiterrorism and Effective Death
Penalty Act of 1996, defendant may not file a second or
successive motion pursuant to Section 2255 unless he first
applies to the appropriate court of appeals for an order
authorizing the district court to consider the motion.
See 28 U.S.C. §§ 2244(b)(3), 2255(h). A
second or successive motion under 28 U.S.C. § 2255 may
be filed in the district court if the court of appeals
certifies that the motion is based on (1) newly discovered
evidence that if proven and viewed in light of the evidence
as a whole would establish by clear and convincing evidence
that no reasonable fact finder would have found defendant
guilty of the offense; or (2) a new rule of constitutional
law that was previously unavailable and made retroactive to
cases on collateral review by the Supreme Court. 28 U.S.C.
has not explained how any current investigation about AUSA
Morehead impacts his case or could be used to satisfy the
authorization standards for a second or successive Section
2255 motion. Moreover, 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). Accordingly, on the
present record, the Court overrules defendant's motion to
appoint counsel on this claim.
Claims Involving Attorney-Client Recordings
asks the Court to appoint counsel to investigate potential
Sixth Amendment claims involving attorney-client recordings.
Under District of Kansas Standing Order No. 18-3, the Federal
Public Defender (“FPD”) was appointed “to
represent any defendant from the District of Kansas who may
have a post-conviction Sixth Amendment claim based on the
recording of in-person attorney-client meetings or
attorney-client phone calls by any holding facility housing
federal detainees within this District.” As part of the
appointment, the FPD is to “review potential
cases.” Because the FPD has already been appointed to
review potential cases involving attorney-client recordings,
the Court overrules as moot defendant's motion to appoint
counsel on this issue.
IS THEREFORE ORDERED that defendant's Motion
For Appointment Of Counsel In Light Of The Enactment Of The
First Step Act Of 2018 Making The Fair Sentencing Act Of 2010
Retroactive And The Recent Investigation Of AUSA Terra
Morehead Concerning Her Misconduct (Doc. #166) filed
July 18, 2019 is OVERRULED.
IS FURTHER ORDERED that defendant's Motion
For Appointment Of Counsel Pursuant To Standing Order 18-3
And 18 U.S.C. § 3006A (Doc. #167) ...