Opinion
Case No. 01-20031-JWL
October 7, 2003
MEMORANDUM AND ORDER
Defendant Randall W. Smith is a convicted felon who pled guilty to possessing a firearm in violation of 18 U.S.C. § 922(g). On December 10, 2001, he was sentenced to a forty-one-month prison term followed by three years of supervised release and was assessed $100. This matter is presently before the court on defendant's motion for appointment of counsel (Doc. 33). For the reasons explained below, his motion is denied.
Defendant requests that the court appoint counsel to assist him with arranging for his federal prison sentence to run concurrently with his state prison sentence. He does not currently have any action pending before this court, and therefore the court can only predict what type of procedural vehicle he might attempt to use to obtain this relief. He has not timely filed a notice of appeal. Therefore, he would presumably seek a writ of habeas corpus by way of a motion pursuant to 28 U.S.C. § 2241, 2254, or 2255.
The Sixth Amendment right to counsel only applies to criminal proceedings. Smith v. Sec'y of KM. Dep't of Corrections, 50 F.3d 801, 821 n. 29 (10th Cir. 1995). Habeas corpus proceedings are civil in nature, not criminal. Id. (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). Therefore, no constitutional right to counsel exists in habeas proceedings. Tapia v. Lemaster, 172 F.3d 1193, 1196 (10th Cir. 1999) (citing McCleskey v. Zant, 499 U.S. 467, 495 (1991)). However, if the interests of justice so require, a habeas petitioner who is financially unable to obtain representation may be appointed counsel under the Criminal Justice Act. See 18 U.S.C. § 3006A(a)(2)(B). Whether to appoint counsel is within the district court's sound discretion. Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001), cert. denied, 535 U.S. 1001 (2002).
The court is unpersuaded that the interests of justice warrant appointment of counsel, at least at this time. Incarcerated prisoners such as defendant routinely represent themselves in habeas proceedings without the assistance of counsel. Even if the court were to accept defendant's representation that he is indigent, the present state of the record does not contain sufficient information to allow the court to assess the potential merits of his argument that he is entitled to serve his state and federal sentences concurrently. The relevant facts appear to be of such a relatively simple nature that defendant should be able to adequately present those facts to the court. Further, the court is confident that it can discern the applicable law, which is fairly straightforward. IT IS THEREFORE ORDERED BY THE COURT that defendant's motion for appointment of counsel (Doc. 33) is denied.
IT IS SO ORDERED