Opinion
19-cr-60055-BLOOM
04-25-2023
UNITED STATES, Plaintiff, v. ZYHEEM IAN SMITH, et al., Defendant.
ORDER ON MOTION FOR APPOINTMENT OF COUNSEL
BETH BLOOM, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon Defendant Zyheem Ian Smith's Motion Requesting Legal Representation or Appointment of Counselor, ECF No. [134] (“Motion”), filed on April 25, 2023. Therein, Smith requests “appointment of counselor in light of a ‘new' recent development in United States v. Louis, 21-cr-20252 (S.D. Fla.) . . . which indicates that Hobbs Act Robbery no longer qualifies as a crime of violence.” Id. at 1.
“[T]here is no federal constitutional right to postconviction counsel.” Barbour v. Haley, 471 F.3d 1222, 1229 (11th Cir. 2006). “When a party does not have a constitutional, statutory, or rule-based right to counsel, the district court may exercise its discretion as to whether to appoint counsel.” United States v. Johnson, 842 Fed.Appx. 402, 405 (11th Cir. 2021). “The district court has broad discretion in making this decision and should appoint counsel only in exceptional circumstances.” Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999) (internal citations omitted).
The Court has reviewed Smith's case and concludes that exceptional circumstances are not present. The Court has already rejected Smith's argument, previously raised in his 28 U.S.C. § 2255 motion, that Smith's sentence is illegal for relying on Hobbs Act robbery as a predicate for Smith's 18 U.S.C. § 924(c) conviction. ECF No. [122] at 5-7. The Court thereafter dismissed a second § 2255 motion brought by Smith as successive. ECF No. [130]. As the Court explained, Smith must receive permission from the Eleventh Circuit Court of Appeals prior to filing another § 2255 motion. Id.
Accordingly, it is ORDERED AND ADJUDGED that Smith's Motion, ECF No. [134], is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, on April 25, 2023.