Opinion
12-cr-00278-EMC
03-20-2024
USA, Plaintiffs, v. MURRAY, Defendants.
ORDER APPOINTING COUNSEL DOCKET NO. 502
EDWARD M. CHEN UNITED STATES DISTRICT JUDGE
On January 27, 2021, James Murray's conviction became final when the Ninth Circuit granted appellant's motion for voluntary dismissal of Mr. Murray's appeal. See Docket No. 496. On May 13, 2021, Mr. Murray filed a motion to appoint counsel to file a habeas petition and to investigate the facts and conduct discovery. Docket No. 497. The Court did not rule on that request. On October 16, 2023, Mr. Murray sent a letter to the Court asking the Court to address his prior motion. Docket No. 499. On November 27, 2023, Mr. Murray filed a habeas petition, moving to vacate under 28 U.S.C.A. § 2255 for ineffective assistance of counsel. Docket No. 500.
It appears that Mr. Murray's habeas petition is untimely, given that § 2255 provides a one-year statute of limitations. There is no obvious basis to toll the limitations period. As to the filing of the motion for appointment of counsel in 2021, the Supreme Court has held that “the motion for counsel is not itself a petition, because it does not call for (or even permit) a decision on the merits.” Woodfordv. Garceau, 538 U.S. 202, 210 (2003) (discussing § 2254, not § 2255) (quoting Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir. 1997). Nonetheless, the Court cannot say at this point that there is no colorable argument that can be made as to timeliness of the petition. The Court therefore appoints counsel to represent and assist Mr. Murray in demonstrating that his habeas petition should be deemed timely (should there be a good faith basis for so arguing).
After counsel for Mr. Murray is appointed, defense counsel shall have one month from the date of its appointment to file a supplemental brief, explaining why the Court should find Mr. Murray's habeas petition untimely. The government shall have ten days from that date to submit its opposition. After the parties' submissions, the matter will be deemed submitted unless the Court schedules argument.
IT IS SO ORDERED.