United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING MOTION TO
APPOINT COUNSEL AND GRANTING LEAVE TO FILE AMENDED §
2255 MOTION, AND NOTICE
NUFFER DISTRICT JUDGE.
Salvador Sandoval-Ochoa requests the appointment of counsel
in this case brought under 28 U.S.C. §
2255. There is no constitutional or statutory
right to the appointment of counsel in § 2255
proceedings, unless an evidentiary hearing is
held. Nevertheless, counsel may be appointed
when “the interests of justice so require” for a
“financially eligible person” seeking relief
under § 2255.
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,  has also shown an
“ability to investigate the facts necessary for [the]
issues and to articulate them in a meaningful
fashion.” Additionally, the issues Mr.
Sandoval-Ochoa raises appear to be “straightforward and
not so complex as to require counsel's
assistance.” Therefore, Mr. Sandoval-Ochoa's
request for the appointment of counsel 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 also requests leave to file an amended §
2255 motion raising a claim for relief based on the
United States Supreme Court's opinion in Johnson v.
United States. Given that Mr. Sandoval-Ochoa's
filing does not comply with the pleading
requirements for a § 2255 motion,  it is
appropriate that his request for leave to file an amended
§ 2255 motion be GRANTED.
HEREBY ORDERED that Mr. Sandoval-Ochoa's request for the
appointment of counsel 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.
FURTHER HEREBY ORDERED that Mr. Sandoval-Ochoa's request
for leave to file an amended § 2255 motion raising a
claim for relief based on the United States Supreme
Court's opinion in Johnson is GRANTED.
Mr. Sandoval-Ochoa must file his amended § 2255 motion
by no later than May 12, 2017.
IS HEREBY GIVEN that on March 6, 2017, the United States
Supreme Court issued its decision in Beckles v. United
States. In Beckles,  the Supreme
Court addressed whether the analysis of
Johnson and Welch v. United
States 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.”
Sandoval-Ochoa is encouraged to review the
Beckles decision and determine its applicability
to the claim for relief he intends to include in his amended
§ 2255 motion. If, after reviewing the
Beckles 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
 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.
Paul v. United States, 2006
WL 314563, *1 (D. Utah Feb. 9, 2006); Rules Governing Section
2255 Proceedings for the United States ...