Opinion
No. 02 Civ. 3358(JSR)(KNF)
January 10, 2003
MEMORANDUM and ORDER
Wilfredo Bautista ("Bautista") has made a motion, pro se, pursuant to 28 U.S.C. § 2255, to vacate the sentence that was imposed upon him following a plea of guilty to Count 1 of Indictment No. 00 Cr. 579-3. That count of the indictment charged that Bautista conspired to violate the laws of the United States respecting controlled substances. Bautista contends, among other things, that his confinement is violative of the Constitution or laws of the United States because he received ineffective assistance from his counsel. To assist him in obtaining the relief sought through the motion to vacate the sentence, Bautista has requested that the Court appoint counsel to represent him. That application is addressed below.
Although a motion made pursuant to 28 U.S.C. § 2255 attacks a sentence imposed in a criminal proceeding, the adjudication of the motion is an independent civil proceeding. Consequently, Bautista has no constitutional right to appointed counsel. The appointment of counsel for an indigent civil litigant, such as Bautista, is a matter left to the Court's discretion.
Rule 8 of the Rules Governing Section 2255 proceedings for the United States District Courts, in its most pertinent part, provides that counsel should be appointed for a movant who qualifies for appointment of counsel under 18 U.S.C. § 3006A(g) if the Court finds that an evidentiary hearing is required to determine whether the challenged sentence should be vacated. See Rule 8(c) of the Rules Governing Section 2255 Proceedings. However, where no hearing is required, the appointment of counsel is not warranted. See Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 1992).
In the case at bar, the Court has reviewed the motion and the opposition papers submitted by the parties. The Court has determined, based upon a review of those documents, that a hearing does not appear to be necessary in order to resolve the issues presented by the motion to vacate the sentence. The issues appear to be ones that may fairly be resolved upon a review of the record and the written submissions of the parties. Consequently, Bautista's application for appointment of counsel is denied.