Opinion
Case No. 07-20168-22-JWL
03-22-2017
United States of America, Plaintiff, v. Keith McDaniel, Defendant.
MEMORANDUM & ORDER
This matter is presently before the court on defendant Keith McDaniel's motion for appointment of counsel (doc. 1794) in which he expresses a belief that he qualifies for relief under United States v. Mathis, 136 S. Ct. 2243 (2016) and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). His motion is denied. Hinkle held that a conviction pursuant to § 481.112(a) of the Texas Health & Safety Code does not qualify as a "controlled substance offense" as defined by § 4B1.2 of the United States Sentencing Guidelines based upon the analysis explained in Mathis. Mr. McDaniel, then, seems to suggest that the underlying drug convictions used to enhance his sentence as a career offender under the Guidelines are not proper predicate offenses. Because any claims asserted by Mr. McDaniel under Mathis or Hinkle would be barred by the statute of limitations, there is no reason to appoint counsel to assist Mr. McDaniel with such claims. See 28 U.S.C. § 2255(f)(3) (extending limitations period when the "the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review"); United States v. Taylor, 2016 WL 7093905, at *4 (10th Cir. Dec. 6, 2016) (Mathis did not announce a new rule and does not permit a successive habeas petition).
IT IS THEREFORE ORDERED BY THE COURT THAT Mr. McDaniel's motion for order (doc. 1794) is denied.
IT IS SO ORDERED.
Dated this 22nd day of March, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge