Opinion
1:21-cv-0037 (NLH)
03-04-2021
NICHOLAS KYLE MARTINO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
APPEARANCES: Nicholas Kyle Martino 106 B Hurffville-Grenloch Road Sewell, NJ 08080 Petitioner pro se
MEMORANDUM OPINION & ORDER
APPEARANCES: Nicholas Kyle Martino
106 B Hurffville-Grenloch Road
Sewell, NJ 08080
Petitioner pro se HILLMAN , District Judge
WHEREAS, Petitioner Nicholas Kyle Martino filed a motion to correct, vacate, or set aside his federal sentence under 28 U.S.C. § 2255, see ECF No. 1; and
WHEREAS, the Court issued a notice and order advising Petitioner of his rights under United States v. Miller, 197 F.3d 644 (3d Cir. 1999), ECF No. 5; and
WHEREAS, Petitioner having stated that he wishes to proceed with his § 2255 motion as filed, ECF No. 6; and
WHEREAS, Petitioner seeks the appointment of counsel and discovery, id.; and
WHEREAS, there is no right to counsel in post-conviction proceedings. See Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991), superseded on other grounds by statute, 28 U.S.C. § 2254. However, 18 U.S.C. § 3006A(a)(2)(B) provides that the court has discretion to appoint counsel where "the court determines that the interests of justice so require . . . ."; and
WHEREAS, in Reese, the Third Circuit explained that in determining whether counsel should be appointed, a court "must first decide if petitioner has presented a nonfrivolous claim and if the appointment of counsel will benefit the petitioner and the court. Factors influencing a court's decision include the complexity of the factual and legal issues in the case, as well as the pro se petitioner's ability to investigate facts and present claims." Reese, 946 F.2d at 263-64; and
WHEREAS, the Court denies the motion for counsel without prejudice. The Court finds it is not in the interests of justice to appoint counsel at this time because the issues involved in this case do not appear overly complex; and
WHEREAS, Rule 6 of the Rules Governing Section 2255 Cases states that "[a] party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents." 28 U.S.C. § 2255 Rule 6(b). Petitioner has not identified what discovery is requested or stated why discovery is necessary. The request for discovery is denied without prejudice,
THEREFORE, IT IS on this 4th day of March, 2021
ORDERED that Petitioner's motion for the appointment of counsel and for discovery is denied; and it is further
ORDERED that within forty-five (45) days of the date of the entry of this Order, the United States shall electronically file and serve an answer to the § 2255 Motion; and it is further
ORDERED that the answer shall respond to the allegations and grounds of the Motion and shall adhere to Rule 5 of the Rules Governing Section 2255 Proceedings; and it is further
ORDERED that the answer shall address the merits of each claim raised in the Motion as well as whether the Motion is timely; and it is further
ORDERED that the answer shall contain an index of exhibits; and it is further
ORDERED that if the answer refers to briefs or transcripts, orders, and other documents from prior proceedings, then the United States shall serve and file them with the answer; and it is further
ORDERED that Petitioner may serve and file a reply to the answer within forty-five (45) days after the answer is filed; and it is further
ORDERED that any request to deviate from this Order to Answer shall be made by motion; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of this Order on Petitioner by regular first-class mail.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J. At Camden, New Jersey