Opinion
2:11-cr-00146
02-08-2021
UNITED STATES OF AMERICA, v. RAYMOND NAPOLITAN, Defendant.
ORDER OF COURT
MARK R. HORNAK, CHIEF UNITED STATES DISTRICT JUDGE
AND NOW, this 8th day of February, 2021, the Court issues the following Order: The Defendant, Mr. Raymond Napolitan, submitted a pro se Motion to Appoint Counsel at ECF No. 159, in which Mr. Napolitan requests “a court-appointed attorney for legal advice” before taking action on any further compassionate release motions. (ECF No. 159.) For the reasons that follow, Mr. Napolitan's Motion is DENIED without prejudice.
In his Motion, Mr. Napolitan specifically requests that the Court treat his current filing only as a motion seeking a court-appointed attorney and expressly asks that this Court not treat the filing as a motion for compassionate release. (Id.) Specifically, Mr. Napolitan says that he seeks a court-appointed attorney to assist with amending his previously filed motion for compassionate release (ECF No. 150) as well as assistance with presenting arguments to the Court. (Id.) The Court can briefly summarize the procedural history of this case as follows: On September 17, 2020, Mr. Napolitan filed a motion for compassionate release (ECF No. 150) and a motion to appoint counsel. (ECF No. 151.) The Court referred Mr. Napolitan's compassionate release motion to the Federal Public Defender (“FPD”) for the Western District of Pennsylvania for consideration and a determination of whether FPD intended to supplement Mr. Napolitan's motion. FPD has advised the Court that it has declined to supplement Mr. Napolitan's motion for compassionate release, and the Court thereafter dismissed without prejudice both of Mr. Napolitan's motions for failure to demonstrate that he had satisfied § 3582(c)'s administrative exhaustion requirements. (ECF No. 158).
Now, Mr. Napolitan again requests that this Court appoint counsel to assist him with a potential, prospective compassionate release motion. In his request for a court-appointed attorney, Mr. Napolitan includes the initial compassionate release petition he filed with the Bureau of Prisons (“BOP”) as proof of administrative exhaustion. While the Court notes that the attached filing appears to make a sufficient showing on the record to demonstrate that Mr. Napolitan has satisfied the statute's administrative exhaustion requirement, Mr. Napolitan's Motion only seeks a narrow determination by this Court as to his request for counsel. Accordingly, the Court does not assess whether Mr. Napolitan would be successful on the merits of a renewed compassionate release motion at this juncture.
The Third Circuit has stated that how a court decides to consider a § 3582(c) motion is a decision that falls squarely within the district court's discretion. United States v. Styer, 573 F.3d 151, 153-54 (3d Cir. 2009) (citing United States v. Tidwell, 178 F.3d 946, 949 (7th Cir.1999)). In so concluding, the Third Circuit relied on the Seventh Circuit's decision in United States v. Tidwell, which squarely held that a district court's discretion on such a motion includes “whether to grant a request for appointment of counsel.” United States v. Lynch, No. 03-00692-02, 2012 WL 460394, at *2 (E.D. Pa. Feb. 14, 2012) (citing Tidwell, 178 F.3d at 949 (citing United States v. Townsend, 98 F.3d 510 (9th Cir. 1996), and United States v. Whitebird, 55 F.3d 1007 (5th Cir. 1995))); see also United States v. Webb, 565 F.3d 789, 794 (11th Cir. 2009) (“The notion of a statutory or constitutional right to counsel for § 3582(c)(2) motions has been rejected by all of our sister circuits that have addressed the issue, and we agree with this consensus.”); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000), cert. denied, 531 U.S. 1080 (2001)) (It is well settled that “a criminal defendant has no right to counsel beyond his first appeal.” (quoting Coleman v. Thompson, 501 U.S. 722, 756 (1991))).
The Third Circuit's holding in Styer reiterates the principle that a lower court's decision to grant or deny a request for appointment of counsel for a compassionate release motion is discretionary. Styer, 573 F.3d at 153-54. In his request, which expressly asks that the Court not consider the merits of his anticipated Motion for Compassionate Release, Mr. Napolitan does not proffer any unusual, complex, particularly urgent or other out of the ordinary circumstances, nor does he advise as to any basis for the Court to conclude that there is some particular reason that in his case, counsel should be appointed to avoid some impending or likely miscarriage of justice, or that his release motion involves urgent or compelling medical reasons for his release for which counsel is particularly necessary to advance. As such, the Court concludes that Mr. Napolitan is not constitutionally nor statutorily entitled to such an appointment here, and the Court DENIES without prejudice Mr. Napolitan's pro se Motion to Appoint Counsel. (ECF No. 159.)