Opinion
Civil Case No. 99-3324-SAC, Criminal Case No. 94-40017-01-SAC.
August 4, 2004
ORDER
By letter dated July 25, 2004, the defendant has written the court asking for legal advice or appointment of counsel to assist him in presenting arguments based on the recent Supreme Court decision of Blakely v. Washington, 524 U.S. ___, 124 S. Ct. 2531 (June 24, 2004). It is inappropriate for this court to provide legal advice. The court directs the defendant's attention to Sup. Ct. R. 13 in deciding whether to pursue a petition for a writ of certiorari and to 28 U.S.C. § 2255 in deciding whether to pursue a second or successive § 2255 motion. As for appointing counsel for the defendant, there is no constitutional right to appointed counsel to pursue a collateral attack on conviction, for "the right to appointed counsel extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). There is no constitutional or statutory right to appointment of counsel in a § 2255 proceeding when relief is denied without an evidentiary hearing. See Swazo v. Wyoming, 23 F.3d 332, 333 (10th Cir. 1994). Thus, only when an evidentiary hearing is required is a defendant entitled to counsel. Id. Rule 8(c) of the Rules Governing § 2255 Proceedings unequivocally states, "If an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g)." As the defendant has not shown the need for an evidentiary hearing or otherwise satisfied the "interest of justice" standard under 18 U.S.C. § 3006A, the court declines the defendant's request for appointment of counsel.
IT IS SO ORDERED.