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Sandoval-Ochoa v. United States

United States District Court, D. Utah

April 13, 2017

SALVADOR SANDOVAL-OCHOA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. Crim. No. 2:15-CR-91-DN

          MEMORANDUM DECISION AND ORDER DENYING MOTION TO APPOINT COUNSEL AND GRANTING LEAVE TO FILE AMENDED § 2255 MOTION, AND NOTICE

          DAVID NUFFER DISTRICT JUDGE.

         Petitioner Salvador Sandoval-Ochoa requests the appointment of counsel in this case brought under 28 U.S.C. § 2255.[1] There is no constitutional or statutory right to the appointment of counsel in § 2255 proceedings, unless an evidentiary hearing is held.[2] Nevertheless, counsel may be appointed when “the interests of justice so require” for a “financially eligible person” seeking relief under § 2255.[3]

         After review and consideration of Mr. Sandoval-Ochoa's filings, justice does not require the appointment of counsel at this time. It is yet unclear that Mr. Sandoval-Ochoa has asserted any colorable basis for relief from his sentence. Mr. Sandoval-Ochoa, through his filing, [4] has also shown an “ability to investigate the facts necessary for [the] issues and to articulate them in a meaningful fashion.”[5] Additionally, the issues Mr. Sandoval-Ochoa raises appear to be “straightforward and not so complex as to require counsel's assistance.”[6] Therefore, Mr. Sandoval-Ochoa's request for the appointment of counsel[7] is DENIED. However, if it later appears that counsel may be needed or of specific help, an attorney will be appointed to appear on Mr. Sandoval-Ochoa's behalf.

         Mr. Sandoval-Ochoa also requests leave to file an amended § 2255 motion[8] raising a claim for relief based on the United States Supreme Court's opinion in Johnson v. United States.[9] Given that Mr. Sandoval-Ochoa's filing[10] does not comply with the pleading requirements for a § 2255 motion, [11] it is appropriate that his request for leave to file an amended § 2255 motion[12] be GRANTED.

         ORDER

         IT IS HEREBY ORDERED that Mr. Sandoval-Ochoa's request for the appointment of counsel[13] is DENIED. However, if it later appears that counsel may be needed or of specific help, an attorney will be appointed to appear on Mr. Sandoval-Ochoa's behalf.

         IT IS FURTHER HEREBY ORDERED that Mr. Sandoval-Ochoa's request for leave to file an amended § 2255 motion[14] raising a claim for relief based on the United States Supreme Court's opinion in Johnson[15] is GRANTED. Mr. Sandoval-Ochoa must file his amended § 2255 motion by no later than May 12, 2017.

         NOTICE

         NOTICE IS HEREBY GIVEN that on March 6, 2017, the United States Supreme Court issued its decision in Beckles v. United States.[16] In Beckles, [17] the Supreme Court addressed whether the analysis of Johnson[18] and Welch v. United States[19] apply to render the residual clause of USSG § 4B1.2(a), defining “crime of violence, ” unconstitutionally vague. The Supreme Court concluded that it did not, holding that “the advisory Guidelines are not subject to a vagueness challenge under the Due Process Clause and that [USSG] § 4B1.2(a)'s residual clause is not void for vagueness.”[20]

         Mr. Sandoval-Ochoa is encouraged to review the Beckles[21] decision and determine its applicability to the claim for relief he intends to include in his amended § 2255 motion. If, after reviewing the Beckles[22] decision, Mr. Sandoval-Ochoa believes his intended claim is without merit, he may file a notice of voluntarily dismissal of this case. Otherwise, he may proceed with the filing of his amended § 2255 motion. However, Mr. Sandoval-Ochoa is cautioned that if he files the amended § 2255 motion, and it is dismissed on its merits, any “second or successive [§ 2255] motion must be certified as provided in [28 U.S.C. §] 2244 by a panel of the appropriate court of appeals to contain--(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”[23]

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Notes:

[1] Petitioner's Motion Seeking Appointment of Counsel, Pursuant to Title 18 U.S.C. § 3006A, and Petitioner Preserves the Johnson Case for Future Litigation 135 S.Ct. 2551 (2015), docket no. 1, filed June 27, 2016.

[2] Paul v. United States, 2006 WL 314563, *1 (D. Utah Feb. 9, 2006); Rules Governing Section 2255 Proceedings for the United States ...


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