Opinion
CASE NO. 1:14-CR-0207 AWI-1
06-22-2020
JUAN CARLOS REYES, Petitioner v. UNITED STATES OF AMERICA, Respondent
ORDER REGARDING PETITIONER'S 28 U.S.C. § 2255 PETITION
On June 16, 2020, the Court appointed the appointed counsel Kristi Hughes to represent Petitioner pursuant to Eastern District of California General Order No. 563. See Doc. No. 73. The appointment was made retroactive with an effective date of June 11, 2020. See id.
General Order 563 provides for the appointment of counsel with respect to potential challenges to sentences based on Johnson v. United States, 135 S.Ct. 2551 (2015).
On June 15, 2020, Petitioner on his own and without the assistance of counsel filed a 28 U.S.C. § 2255 petition for habeas corpus. See Doc. No. 74. The petition is one sentence long. See id.
The petition is dated June 15, 2020, but was entered and marked as "filed" by the Clerk's Office on June 17, 2020. See Doc. No. 74. Pursuant to the prisoner mailbox rule, at this time, the Court considers the petition to have been filed on June 15, not June 17. See United States v. Winkles, 795 F.3d 1134, 1146 (9th Cir. 2015); United States v. Garcia, 210 F.3d 1058, 1061 n.5 (9th Cir. 2000).
Generally, in § 2255 cases in which a pro se individual files a petition and counsel is subsequently appointed, one of two tracks are followed: (1) counsel files an amended or supplemental petition/memorandum, or (2) counsel files a notice of withdrawal of the pro se petition. If a supplemental or amended petition is filed, the Court examines the merits of the petition and issues further orders to resolve the petition. If a notice of withdrawal is filed, the Court issues an administrative order that acknowledges that the matter has been withdrawn and that the petition on file is moot. This is consistent with the Eastern District's General Orders involving Johnson and Davis challenges to a conviction or sentence. See Eastern Dist. of Cal. Gen. Orders 563, 603. Those orders provide for the Court to forward any pro se motions or petitions involving Johnson or Davis challenges to the Federal Defenders Office so that the Federal Defender may assume representation and notify the Court of any new motions or petitions involving Johnson or Davis issues. See id.
Here, Petitioner's June 15 petition is technically an improper pro se filing. Because of the retroactive feature of the June 16 appointment order, the petition was filed at a time when Petitioner was represented by counsel. Generally, such pro se matters are stricken because a litigant who is represented by counsel is not authorized to file pro se motions. Vigeant v. Baughman, 2019 U.S. Dist. LEXIS 65234, *4 (C.D. Cal. Feb. 14, 2019); Turner v. Muniz, 2018 U.S. Dist. LEXIS 67186, *2 (E.D. Cal. Apr. 18, 2018); United States v. Yin, 2017 U.S. Dist. LEXIS 163013, *1 (W.D. Was. Sept. 30, 2017); United States v. Gallardo, 915 S.Supp. 216, 218 n.1 (D. Nev. 1995); see also United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir. 1987) (noting that there is no constitutional right to hybrid representation of counsel and self-representation).
After consideration, the Court will not strike Petitioner's pro se § 2255 petition because it was filed at a time when no orders regarding his representation had been filed. Instead, the Court will proceed as if the petition was filed when Petitioner was technically not represented. Counsel will be directed to either amend/supplement the pro se petition or file a motion to withdraw the petition or file any motions that may be appropriate in order to review and resolve any outstanding Johnson and Davis issues. Cf. Eastern Dist. of Cal. Gen. Orders 563, 603.
ORDER
Accordingly, IT IS HEREBY ORDERED that, no later than thirty (30) days from service of this order, appointed counsel Kristi Hughes shall either supplement or amend the pro se § 2255 habeas petition, file a withdrawal of the § 2255 pro se habeas petition, or file any other appropriate motions to further the resolution of any outstanding Johnson and Davis issues. IT IS SO ORDERED. Dated: June 22, 2020
/s/_________
SENIOR DISTRICT JUDGE