Opinion
No. 2:05-cr-0240-GEB-CMK No. 2:14-cv-1073-GEB-CMK
03-19-2015
UNITED STATES OF AMERICA, Respondent, v. HAMID HAYAT, Movant.
ORDER
Movant, a federal prisoner currently proceeding with pro bono counsel, brings this motion to vacate, set aside or correct a criminal judgment pursuant to 28 U.S.C. § 2255. Pending before the court is movant motion for appointment of pro bono counsel under 18 U.S.C. § 3006A.
There currently exists no absolute right to appointment of counsel in § 2255 proceedings. See Irwin v. United States, 414 F.2d 606 (9th Cir. 1969). The Sixth Amendment right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867 (1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint counsel to represent a habeas petitioner when "the court determines that the interests of justice so require . . . ." See also 28 U.S.C. § 1915(a) and Rule 8(c), foll. 28 U.S.C. § 2254. Appointment of counsel is required where an evidentiary hearing must be held, but where one is not mandated the decision to appoint counsel is discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987). The court must appoint counsel where the complexities of the case are such that denial of counsel would amount to a denial of due process. Brown v. United States, 623 F.2d 54, 61 (9th Cir.1980).
The court finds this action sufficiently complex and meritorious to warrant the requested appointment of counsel. Counsel's request to have the appointment granted nunc pro tunc as of June 20, 2013, does not conform to the court's preferred method of appointing counsel. While retroactive appointment is permissible, counsel waited for more than a year and a half, and until after a significant amount of work was completed , before filing his request. Appointment of counsel could have been sought much earlier, such as a contemporaneous request with the § 2255 motion. Counsel is advised that future requests should be sought at an early stage of the proceedings, when possible.
Accordingly, IT IS HEREBY ORDERED that movant's request for appointment of Dennis P. Riordan and the firm of Riordan and Horgan (Docs. 549, 560) is granted nunc pro tunc to June 20, 2013.
DATED: March 19, 2015
/s/_________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE