English v. United States of America
INITIAL REVIEW ORDER re 3 PRO SE MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR11-4105-DEO) filed by Tuwane English. The court cannot grant 1 PRO SE MOTION for Leave to Proceed in forma pauperis at this time. The Clerk of Court shall appoint counsel to represent pro se Petitioner. Petitioners newly appointed counsel shall have until 11/28/13 to amend or supplement and brief. Respondents Brief is due by 12/28/13. Signed by Senior Judge Donald E OBrien on 10/29/13. (copy w/nef mailed to pro se petitioner; CJA Panel Administrator notified) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
INITIAL REVIEW ORDER
UNITED STATES OF AMERICA,
Before the Court is a pro se “Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, Or Correct Sentence By a Person In
Federal Custody,” Docket No. 3, filed by Tuwane English
[hereinafter Mr. English].
In his Petition, Mr. English
alleges that he received ineffective assistance of counsel.
MOTION TO PROCEED IN FORMA PAUPERIS
Mr. English filed a Motion to Proceed In Forma Pauperis.
Docket No. 2. In forma pauperis status allows a petitioner to
proceed without incurring filing fees or other court costs.
In order to qualify for in forma pauperis status, a petitioner
must provide this Court an affidavit
with the following
(1) statement of the nature of the action, (2)
An affidavit is a “voluntary declaration of facts
written down and sworn to by the declarant before an officer
authorized to administer oaths.” Black’s Law Dictionary (9th
ed. 2009), affidavit.
statement that plaintiff/petitioner is entitled to redress,
(3) statement of the assets plaintiff/petitioner possesses,
and (4) statement that plaintiff/petitioner is unable to pay
filing fees and court costs or give security therefor.
U.S.C. § 1915(a)(1).
Prisoners must also meet an additional
they must submit a certified copy of their
prisoner trust fund account statement for a 6-month period
prior to the filing of the complaint. 28 U.S.C. § 1915(a)(2).
Mr. English has both failed to include a prisoner account
statement and has failed to sign his affidavit.
the Court can not grant in forma pauperis status at this time.
As will be discussed further below, the Court is appointing
Mr. English counsel. Counsel can refile the Motion to Proceed
In Forma Pauperis if necessary.
According to 28 U.S.C. § 2255(f),
A 1-year period of limitation shall apply
to a motion under this section.
limitation period shall run from the latest
of (1) the date on which the judgment of
conviction becomes final; (2) the date on
which the impediment to making a motion
created by governmental action in violation
of the Constitution or laws of the United
States is removed, if the movant was
prevented from making a motion by such
governmental action; (3) the date on which
the right asserted was initially recognized
by the Supreme Court, if that right has
been newly recognized by the Supreme Court
and made retroactively applicable to cases
on collateral review; or (4) the date on
which the facts supporting the claim or
claims presented could have been discovered
through the exercise of due diligence.
This Court entered Judgment against Mr. English on March 29,
11-CR-4105-DEO, Docket 49.
On March 18, 2013, Mr.
ineffective of assistance of counsel.
55. Although Mr. English did not actually file the present 28
U.S.C. § 2255 action until September 16, 2013, Docket No. 3,
effectively tolled the statute of limitations.
the Court will allow Mr. English’s Petition to proceed past
this initial stage.
APPOINTMENT OF COUNSEL.
Based upon a review of the submitted pleading, the Court
has determined that appointed counsel is appropriate in order
This is not the Court’s final ruling on the statute of
limitations issue. Rather, the Court is saying that it will
appoint Mr. English counsel and allow counsel to address this
issue on the merits.
that the Petitioner be adequately represented in this matter.
A court has discretion to appoint counsel "at any stage of the
proceeding if the interest of justice so requires." 18 U.S.C.
§3006A(a)(2)(B); Fed.R.Gov. §2255 Proc. 8(c).
counsel is mandated only if the court grants an evidentiary
hearing, Rule 8(c), or if the court permits discovery and
discovery procedures." Rule 6(a). Based upon a review of the
submitted pleading, the Court has determined that appointed
adequately represented in this matter.
UPON THE FOREGOING, IT IS HEREBY ORDERED that the Clerk
of Court shall appoint counsel to represent pro se Petitioner.
IT IS FURTHER HEREBY ORDERED that Petitioner’s newly
appointed counsel shall have thirty (30) days from the date of
Petitioner’s pleading (Docket No. 3).
If there will be no
amendment or supplement and brief, Petitioner’s counsel shall
file a report setting that out.
IT IS FURTHER ORDERED that the Respondent shall have
thirty (30) days from the date Petitioner’s counsel files a
supplemental pleading and brief, if any, within which to file
a responsive pleading and brief.
Finally, the Court notes that Mr. English raises a claim
of ineffective assistance of counsel.
A claim of ineffective
assistance of counsel waives the attorney-client privilege as
to communications with the attorney necessary to prove or
disprove the claim.
United States v. Pinson, 584 F.3d 972,
978 (10th Cir. 2009) (citing Tasby v. United States, 504 F.2d
332, 336 (8th Cir. 1974)("When a client calls into public
question the competence of his attorney, the privilege is
challenged shall cooperate with the United States and provide
responsive to any ineffective assistance of counsel claim in
Mr. English’s § 2255 motion.
Mr. English was represented in
criminal case number 11-CR-4105-DEO by Public Defender Michael
Mr. Smart shall receive a copy of this Order, be added
to the docket in this matter by the Clerk of Court, and will
be required to participate in any hearing scheduled on the
merits of the Petition.
Where former counsel cooperates by reviewing his or her
files, by providing information and documents, by preparing an
affidavit and/or by testifying during an evidentiary hearing,
the Court deems it appropriate to pay him or her under the
Criminal Justice Act, 18 U.S.C. § 3006A (Because former
counsel is a Federal Public Defender, this does not apply.).
For the reasons set out above, Mr. English’s initial
application to proceed in forma pauperis is denied. The Court
establish the briefing deadlines outlined herein.
counsel Mike Smart will assist the Respondent as set out
IT IS SO ORDERED this 29th day of October, 2013.
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
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