The Tenth Circuit has agreed that, where the right to accelerate payments through immediate demand is optional, "the six- year limitations period specified in 28 U.S.C. § 2415(a) applies, and that the period does not run until the government exercised its right to accelerate the note and made demand for payment." United States v. Myers, No. 94-3108, 51 F.3d 287, at *1 (10th Cir. March 31, 1995) (citing Gilmore, 698 F.2d at 1097). See also United States v. Feterl, 849 F.3d 354, 357 (8th Cir. 1988) ("[W]here the lender has fully reserved the right to respond to a borrower's default in whatever manner it deems proper, affirmative action by the creditor must be taken to make it known to the debtor that [the creditor] has exercised his option to accelerate.") (internal quotations and citations omitted).
He appealed again and his sentence was affirmed. United States v. Johnson, 51 F.3d 287 (10th Cir.), cert. denied, 516 U.S. 847, 116 S.Ct. 139, 133 L.Ed.2d 86 (1995). He subsequently filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).
C.A. 10th Cir. Certiorari denied. Reported below: 51 F. 3d 286.
Likewise, courts have found that inmates who are denied special diets suffer no constitutional harm so long as they are instead given instruction on how to eat the available meals in a way that satisfies their medical needs. For example, the Tenth Circuit has found that an inmate who was served a universal, cafeteria-style diet but could use “nutritional break down cards” to determine what foods were amenable to his medical condition could not claim deliberate indifference based on the lack of a special diet. Moore v. Perrill, 51 F.3d 286, at *1 (10th Cir.1995) ; see also Williams v. Hartz, 43 Fed.Appx. 964, 966 (7th Cir. 2002) (affirming the district court's award of summary judgment when the complaining prisoner was not given a special diet, but was “instructed” on medically appropriate food choices and given “snacks” when necessary to raise his blood sugar). And a California district court held that a prisoner who received the “Heart Healthy” diet provided to all inmates in the state prison system and failed to present evidence that he could not eat certain menu items or that the “overall percentage” of such items in each meal was significant could not survive summary judgment on his deliberate indifference claim.
. . ."); Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003) ("The district court found that Caver's appellate counsel had been ineffective thus establishing both a separate constitutional defect and cause and prejudice sufficient to excuse the procedural default. . . ."); Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998) ("Because the same legal standards govern petitioner's underlying claim of ineffective assistance of counsel and his closely related burden to show cause for his state law procedural default, we must determine whether petitioner has shown cause concurrently with the merits of his ineffective assistance of counsel claim."); Hardeman v. Boone, 51 F.3d 286, 1995 WL 147514, at *4 n. 4 (10th Cir. 1995) (unpublished table decision) ("We consider Mr. Hardeman's ineffective assistance of appellate counsel claim . . . both [as] a substantive claim in its own right and as `cause' for his procedural default. . . ."); Carbello v. United States, 1 F.3d 1244, 1993 WL 269502, at *2 n. 3 (7th Cir. 1993) (unpublished table decision) ("For the same reason that we found that Carbello's attorney's performance was not `cause' for Carbello's procedural default, we must reject Carbello's independent claim that his attorney rendered ineffective assistance."); Williams v. McCarthy, 879 F.2d 866, 1989 WL 76884, at *2 (9th Cir. 1989) (unpublished table decision) ("For the same reasons that we reject the claimed ineffective assistance of counsel as cause for procedural default, we reject it as an independent claim for relief."); Cook v. Foltz, 814 F.2d 1109, 1114 (6th Cir. 1987) (Merritt, J., concurring) ("Mr.
have approved searches for substantially similar items to those described in the first six categories in other drug-related cases: See, e.g., United States v. Sullivan, 919 F.2d 1403, 1424 and n. 31 (10th Cir. 1990) (upholding warrant for drugs and list of contraband related to the production of drugs); United States v. Harris, 903 F.2d 770, 774-75 (10th Cir. 1990) (upholding warrant against marijuana trafficker for "currency . . . stocks, bonds or other securities . . . gold silver and/or jewelry . . . books, records, memorandum, notes, bank records, investment records, or any other documents evidencing the obtaining, secreting, transfer, and/or concealment of assets and/or money obtained through illegal means"); United States v. Wicks, 995 F.2d 964, 967, 973-74 (10th Cir. 1993) (upholding warrant for books, records, receipts, notes, ledgers, and other papers relating to the transportation, ordering, sale and distribution of controlled substances); id. (upholding warrant for scales); United States v. Gunderman, 51 F.3d 287 (Table), 1995 WL 143143 at *3 and n. 2 (10th Cir. 1995) (upholding warrant for "[i]tems associated with the processing of controlled substances for transportation and distribution, such as . . . measuring instruments and scales"); United States v. Welch, 291 Fed.Appx. 193, 203 (10th Cir. 2008) (noting that a search for computer records connected to the manufacture of methamphetamine and would not be overbroad). Likewise, we have frequently approved searches for the last category of items to be searched, encompassing articles of personal property that establish the identity of the person in control of the property.
On December 30, 1996, he filed a motion under Federal Rule of Criminal Procedure 35 for modification of his sentence, which the district court denied on January 7, 1998. In chronological order, the § 2255 motions or successive motions were disposed of either by order and judgment or by order denying authorization to file a second or successive § 2255 motion, as follows: United States v. Evans, 51 F.3d 287, 1995 WL 139420 (10th Cir. Mar.31, 1995) (unpublished op.); United States v. Evans, 82 F.3d 427, 1996 WL 167484 (10th Cir. Apr. 10, 1996) (unpublished op.); Evans v. United States, No. 01-5089, Order filed July 27, 2001; Evans v. United States, No. 04-5136, Order filed October 25, 2004; Evans v. United States, No. 05-5078, Order filed August 24, 2005 (granting Appellant's motion to dismiss appeal on reconsideration of § 2255); Evans v. United States, No. 05-5142, Order filed October 31, 2005. More recently, on January 30, 2006, Mr. Evans filed a second motion to modify his sentence under 18 U.S.C. § 3582, which the district court denied.
Several other circuits have also reached this conclusion, although most have not published opinions on the issue. United States v. Newsom, 64 F.3d 660, 1995 WL 493023, at *1 (4th Cir. Aug. 18, 1995); United States v. Loya, 51 F.3d 287, 1995 WL 147523, at *1 (10th Cir. Mar. 21, 1995); United States v. Lively, 20 F.3d 193, 199 (6th Cir. 1994); United States v. Aguirre-Pena, 999 F.2d 544, 1993 WL 242963, at *1-2 (9th Cir. July 6, 1993); Perakis, 937 F.2d at 111-12. Thus, on an issue of apparent first impression, we hold that we have jurisdiction to review the district court's refusal to award Garcia-Ortiz a split sentence only if the court believed it did not have the discretion, under the guidelines, to do so because of Garcia-Ortiz's status as an illegal alien.
Therefore, we reverse. United States v. Prows, 51 F.3d 287, 1995 WL 143433 (Table) (10th Cir. 1995) (unpub.). Background
Unless the Court determines that an evidentiary hearing is required, defendant has no constitutional or statutory right to appointment of counsel in the prosecution of a post-conviction motion such as one under Section 2255. Rule 8(c) of the Rules Governing Section 2255 Proceedings; see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); United States v. Evans, 51 F.3d 287, 1995 WL 139420, at *1 (10th Cir. 1995). In determining whether to appoint counsel in a civil case, the Court considers several factors including (1) the merit of the litigant's claims; (2) the nature of the factual issues raised in the claims; (3) the litigant's ability to present his or her claims; and (4) the complexity of the claims involved.