Burgard v. USA

Filing 2

ORDER DIRECTING the government to file a response to petitioner's motion on or before June 12, 2013. The government shall, as part of its response, attach all relevant portions of the record. Petitioner's request for counsel is DENIED. Signed by Chief Judge David R. Herndon on 5/13/2013. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSHUA BURGARD,
Petitioner,
v.

Civil Case No. 13-cv-450-DRH
Criminal Case No. 10-cr-30085-DRH

UNITED STATES OF AMERICA,

Respondent.
MEMORANDUM & ORDER
HERNDON, Chief Judge:
This matter is before the Court on petitioner Joshua Burgard’s motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1).
Petitioner pleaded guilty to two counts of receiving child pornography in violation
of 18 U.S.C. § 2252(a)(2). On direct appeal, petitioner challenged this Court’s
denial of petitioner’s motion to suppress the photographs found on his phone.
The Seventh Circuit affirmed the denial and thus the judgment of the Court. See
United States v. Burgard, 675 F.3d 1029 (7th Cir. 2012). Instantly, petitioner
raises various claims of ineffective assistance of counsel.
Pursuant to Rule 4 of the RULES GOVERNING SECTION 2255 PROCEEDINGS, the
Court ORDERS the government to file a response to petitioner’s motion on or
before June 12, 2013. The government shall, as part of its response, attach all
relevant portions of the record.
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Additionally, petitioner requests appointment of counsel. The decision of
whether to appoint counsel rests in the discretion of the district court, unless the
denial of counsel would result in fundamental unfairness impinging on the
petitioner's due process rights. Winsett v. Washington, 130 F.3d 269, 281 (7th
Cir. 1997); see 18 U.S.C. § 3006A(a)(2)(B) (“Whenever . . . the court determines
that the interests of justice so require, representation may be provided for any
financially eligible person who . . . is seeking relief under section 2241, 2254, or
2255 of title 28.”). Furthermore, the Seventh Circuit has noted that “[a] section
2255 proceeding is an independent civil suit for which there is no constitutional
right to appointment of counsel.” Oliver v. United States, 961 F.2d 1339, 1343
(7th Cir. 1992) (citing Rauter v. United States, 871 F.2d 693 (7th Cir. 1989)).
Petitioner has not given this Court any reason to believe that the interests of
justice require the unusual step of appointing counsel for his § 2255 motion.
Accordingly, petitioner’s request for counsel is DENIED.
Finally, as to petitioner’s request for an evidentiary hearing, the Court
defers ruling on petitioner’s request until such time as the record is better
developed.
IT IS SO ORDERED.
Signed this 13th day of May, 2013.

David R.
Herndon
2013.05.13
15:37:52 -05'00'
Chief Judge
United States District Judge

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