Nix v. United States Of America

Filing 8

ORDER denying 6 Motion to Appoint Counsel ; denying 7 Motion for Discovery. Signed by Magistrate Judge G. R. Smith on 08/01/2011. (lmm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
THOMAS EDWARD NIX,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. CV411-160
CR409-164

ORDER
Movant seeks leave to undertake discovery pursuant to Rule 6(a) of
the Rules Governing Section 2255 Proceedings. (Doc. 4.) Unlike the
usual civil litigant in federal court, Nix is not entitled to discovery as a
matter of course. Wellons v. Hall, 554 F.3d 923, 925 (11th Cir. 2009) (Rule
6(a) provides that “[a] party shall be entitled to invoke the processes of
discovery available under the Federal Rules of Civil Procedure if, and to
the extent that, the judge in the exercise of his discretion and for good
cause shown grants leave to do so, but not otherwise.” Rule 6(a). A
movant shows such “good cause” for discovery by making specific
allegations that establish reason to believe that, if the facts are fully
developed, he will be able to demonstrate entitlement to habeas relief.

Wellons, 554 FF.3d at 925.

Nix, who pled guilty to bank fraud, claims that he needs records
from American Express that will show that he did not surreptitiously
obtain the American Express cards underlying many counts of bank fraud
set out in the indictment. 1 (Doc. 7 at 1-2.) Those records will, according
to Nix, prove that his lawyer was ineffective for failing to obtain the
records, that the victims of the supposed fraud lied at sentencing, and that
the Assistant United States Attorney prosecuting the case suborned
perjury. ( Id.) Upon an initial review of the record however, the Court sees
no reason to permit discovery at this time. For the most part, Nix’s
contentions are irrelevant. Even if the government’s sentencing
witnesses lied on the stand, they lied about immaterial aspects of the
fraud -- how Nix obtained the corporate credit cards. Nix has not even
suggested that his actual charges and payments were not fraudulent. ( Id.
at 1-2.) Indeed, he admitted at his change of plea hearing that he used
corporate credit cards for unauthorized purchases. CR409-164, doc. 51 at
1

The American Express charges were dropped, however, in consideration of
Nix’s plea of guilty to Count 37 of the indictment, which charged him with writing a
check on his employer’s account. See CR409-164, docs. 35 (plea agreement) &
1(indictment).
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24 (Rule 11 tr.). Nix’s motion for discovery (doc. 7) is DENIED.
Nix also requests appointment of counsel. (Doc. 6.) That motion is
also DENIED. There is no constitutional right to counsel when
collaterally attacking a conviction or sentence. Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Barbour v. Haley, 471 F.3d 1222, 1227-32 (11th
Cir. 2006) (even defendants sentenced to death do not enjoy a
constitutional right to post-conviction counsel). Nor is there any
rule-based right unless Nix can show that appointment of counsel is
necessary for effective discovery or that an evidentiary hearing is
required. See Rules 6 & 8, Rules Governing § 2255 Proceedings. Nix has
neither shown that further discovery will be necessary to the resolution of
his forthcoming claim nor offered any reason to believe that a hearing will
be required. Thus, the Court is simply not persuaded that the “interests
of justice . . . require” appointment of counsel in this case. 18 U.S.C. §
3006A (a)(2).
SO ORDERED this 1st day of August, 2011.

UNiTED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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