Opinion
CASE NO. 1:12-CR-372-1 AWI-BAM
05-13-2019
UNITED STATES OF AMERICA, Plaintiff-Respondent v. PAULINO MARTINEZ-ANDRADE, Defendant-Petitioner
ORDER DENYING DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL
(Doc. No. 22)
Petitioner Paulino Martinez-Andrade brings this "request for appointment of counsel to assist and file and apply for relief from confinement judgement [sic] and sentence [pursuant to] the First Step Act." See ECF No. 22. Therein, Petitioner states his belief that he "may be entitled to relief from sentence" under this act. Id.
Title IV of the First Step Act of 2018 provides for a reduction of enhanced sentences for certain prior drug felonies—mainly crack cocaine offenses. See U.S. v. Keith Jones, 2019 WL 1586814, at *1 (M.D. Tenn. Apr. 12, 2019). However, courts have denied relief where the Act does not allow for relief of a petitioner's specific conviction. U.S. v. Hunter, 2019 WL 1220311, at *2 (D. Conn. Mar. 15, 2019) (concluding that the Fair Sentencing Act did not modify the statutory penalties for crimes not specifically covered by the act, thereby denying the request for immediate release) (citing First Step Act of 2018, PL 115-391, December 21, 2018, 132 Stat 5194 ("the term 'covered offense' means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372), that was committed before August 3, 2010.")). / / /
Here, Petitioner would not be eligible for a sentence reduction under the First Step Act. Simply, Petitioner is serving a 46-month sentence pursuant to his guilty plea for a charge of illegal re-entry under 8 U.S.C. § 1326(a)(2). The Court sees no application of the First Step Act to Petitioner's conviction, and thus an appointment of counsel would be inappropriate. Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) ("It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit, and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis.") (cited by Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 1308 (9th Cir. 1981) ("Perhaps the best way to characterize the requirement relating to meritoriousness in in forma pauperis cases is to say that the petition must be non-frivolous.").
ORDER
Accordingly, IT IS HEREBY ORDERED that Petitioner's request for appointment of counsel to pursue a sentence reduction under the First Step Act is DENIED. IT IS SO ORDERED. Dated: May 13, 2019
/s/_________
SENIOR DISTRICT JUDGE