U.S. v. Fennell

Full title: UNITED STATES OF AMERICA, Plaintiff, v. TROY DEVON FENNELL…

Court: United States District Court, D. Kansas

Date published: Apr 5, 2005

Case Nos. 00-40010-01-JAR, 05-3018-JAR (D. Kan. Apr. 5, 2005)

Opinion

Case Nos. 00-40010-01-JAR, 05-3018-JAR.

April 5, 2005

ORDER

JULIE ROBINSON, District Judge

The Court now considers defendant/petitioner Troy Fennell's Motion for Evidentiary Hearing (Doc. 83), and Application to Proceed In Forma Pauperis (Doc. 84). 28 U.S.C. section 2255 provides: "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing on thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."¹ The Court grants petitioner's motion for an evidentiary hearing on the discrete issue of ineffective assistance of counsel due to counsel's failure to object to the criminal history calculation in paragraph 48 of the presentence report. The United States Attorney is invited to respond to the Motion to Vacate no later than seven (7) days prior to the evidentiary hearing.

1 28 U.S.C. § 2255.

Along with his motion under section 2255, petitioner applied for leave to proceed in forma pauperis. The Court has reviewed the application and finds that petitioner is indigent, and should therefore be allowed to proceed in forma pauperis. Additionally, Rule 8(c) of the Rules governing section 2255 proceedings mandates appointment of counsel if an evidentiary hearing on the motion is required. Because an evidentiary hearing is warranted in this case, this Court will appoint counsel to represent petitioner at the hearing.

IT IS THEREFORE ORDERED BY THE COURT that:

1. Petitioner's Motion for Evidentiary Hearing (Doc. 83) is GRANTED on the issue of ineffective assistance of counsel by not objecting to paragraph 48 of the presentence report at sentencing;

2. The United States Attorney shall respond to the Motion to Vacate no later than seven (7) days prior to the evidentiary hearing;

3. Petitioner's Application to Proceed in forma pauperis (Doc. 84) is GRANTED; and

4. The Court appoints counsel to represent petitioner at the evidentiary hearing under 28 U.S.C. § 3006A.

IT IS SO ORDERED.