Opinion
Criminal Case No. 07-cr-00211-WYD.
July 18, 2008
ORDER
THIS MATTER is before the Court on Defendant Simon Sandoval-De Lao's pro se "Motion to Reconsider" (filed December 6, 2007). As stated in connection with Defendant's previously filed motion for resentencing/reconsideration, under the law, there is no constitutional right to a hybrid form of representation. See United States v. Bennett, 539 F.2d 45, 49 (10th Cir. 1976). Defendant is currently represented by counsel and was when this motion was filed. Indeed, the case was on direct appeal to the Tenth Circuit where Plaintiff was also represented by counsel. Accordingly, I decline to consider the motion filed on a pro se basis and find that it should be denied.
I also decline to consider the motion as a petition under 28 U.S.C. § 2241 or 2255. As noted by the Tenth Circuit in its Order of June 30, 2008, which dismissed Defendant's appeal, whether to construe such a filing as a Section 2255 motion is within the Court's discretion. See Order and Judgment dated June 30, 2008, at 7-8. District courts should be wary of doing so because of the "serious consequences" that are at stake for the prisoner. Id. at 8 (citing Castro v. United States, 540 U.S. 375, 377 (2003)). In this case, the motion seeks reconsideration of a motion that sought resentencing. It did not directly seek collateral review. The Tenth Circuit already found that my decision not to construe the motion for resentencing as a 2255 motion was not an abuse of discretion. Similarly, I find that the instant motion seeking reconsideration of that ruling should also not be construed as a 2255 motion.
I note that the appeal is still pending since a Mandate has not yet issued.
Based upon the foregoing, it is
ORDERED that Defendant's Motion for Reconsideration is DENIED.