Opinion
Case No. 11-cv-01536-DME Related Case: 10-cr-00311-DME
05-03-2012
UNITED STATES OF AMERICA, v. LESTER EUGENE FOWLER, Movant.
ORDER SETTING EVIDENTIARY HEARING AND APPOINTING COUNSEL
Before the Court are Lester Eugene Fowler's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255; the Government's response; and Fowler's reply. (Docs. 109, 114, 115.) Mr. Fowler's motion is timely, complies with the procedural requirements of § 2255, and turns in part on a disputed question of fact, namely, whether Mr. Fowler asked his then-counsel, Scott T. Poland, to appeal his sentence. The Court will therefore conduct an evidentiary hearing to resolve the factual dispute. See United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir. 2005).
Pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B), and Rule 8(c) of the Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255 ("Rule 8(c)"), the Court also orders that counsel be appointed to represent Mr. Fowler at the hearing, assuming that Mr. Fowler continues to meet the financial eligibility requirements.
The hearing will be limited to resolving the disputed question of whether Mr. Fowler actually asked his then-counsel to appeal his sentence. Mr. Fowler will bear the burden of proving this fact by a preponderance of the evidence. See Young v. Sirmons, 486 F.3d 655, 680 (10th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984)).
IT IS THEREFORE ORDERED THAT
1. The Court will conduct an evidentiary hearing to resolve the factual dispute over whether Mr. Fowler asked Mr. Poland to appeal his sentence. In order to conduct the hearing "as soon as practicable after giving the attorneys adequate time to investigate and prepare," Rule 8(c), the parties are ordered to appear in Courtroom C201 of the Byron Rogers Federal Building, 1961 Stout Street, Denver, Colorado, with all necessary evidence and witnesses, on Tuesday, July 10, 2012, at 9:30 a.m (Mountain Daylight Time).
2. The Clerk's Office shall confirm Mr. Fowler's continued eligibility for appointed counsel pursuant to the Criminal Justice Act, and, if Mr. Fowler is eligible, shall immediately appoint new counsel to represent him in the evidentiary hearing.
3. Witness and exhibit lists are to be exchanged between the parties no later than June 26, 2012.
4. No later than June 26, 2012, the parties are to contact the Court at (303) 844-3800, informing the Court of the full names and contact telephone numbers of any witnesses who will be testifying at the hearing via telephone.
BY THE COURT:
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David M. Ebel
United States Circuit Judge