Anderson v. USA

Filing 7

ORDER granting 6 Motion for Reconsideration. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Leif Anderson,
Petitioner
v.

Case No. 12-cv-115-SM
Opinion No. 2012 DNH 067

United States of America,
Government
O R D E R
Petitioner seeks reconsideration of the denial of his motion
for the appointment of counsel to represent him in pursuing
relief under the provisions of 28 U.S.C. § 2255.

Although not

appointed by the court, legal counsel has apparently drafted a
memorandum in support of the petition, and counsel suggests that
the issues raised are both substantive and complex.

He also

represents that government counsel agrees that the appointment of
counsel to assist petitioner is warranted in this case.

There is, of course, no Constitutional right to counsel in
federal habeas corpus.
(1991).

See McCleskey v. Zant, 499 U.S. 467

And, it is a “rare section 2255 case in which the

appointment of counsel is warranted,” United States v. Mala, 7
F.3d 1058, 1064 (1st Cir. 1993).

Such rare cases usually present

factually complex and legally intricate claims, involve largely
undeveloped facts, and assert either facially plausible claims of

ineffective assistance of counsel, or constitutional claims that
are likely to succeed on the merits.

Given those, and similar,

circumstances, counsel may be appointed to represent an indigent
§ 2255 petitioner upon a finding that “the interests of justice
so require.”

18 U.S.C. § 3006A(a)(2)(B).

In this case, petitioner claims, essentially, that he pled
guilty to an offense (failure to register as a sex offender) that
he did not commit, because, as a matter of law, he was not
required to register, given the nature of his predicate sex
offense.

He says that his defense counsel should have recognized

that circumstance and properly advised him, or moved to dismiss
the indictment.

Counsel’s failure to advise him that he was not

required to register or take steps to raise the issue, he says,
deprived him of his right to the effective assistance of counsel.
And, because he did not appreciate the fact that he was not
required to register, his plea of guilty was improvidently
entered, and was factually and legally unsupported.

There does not appear to be much factual complexity here;
the legal claims are probably intricate as presented, but are
fairly limited in scope; the likelihood of success on
petitioner’s statutory construction claim is doubtful but not
plainly without merit; and the ineffective assistance of counsel

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claims necessarily turn on the validity of petitioner’s statutory
construction claims.

All in all, whether counsel should be appointed here at
taxpayer expense is a close question, but counsel makes a
reasonable argument, and government counsel’s agreement provides
the necessary weight to tip the question in petitioner’s favor.
Accordingly, counsel will be appointed to represent petitioner in
connection with his petition.

Conclusion
The motion for reconsideration (document no. 6) is granted.
I find that the interests of justice require that petitioner, a
financially eligible person, be provided with legal
representation with respect to his petition for relief under the
provisions of 28 U.S.C. § 2255.

Attorney Benjamin L. Falkner is

appointed to represent petitioner, nunc pro tunc to February 20,
2012.

The government shall file an answer within thirty (30) days
of this order.

Rule 5, Rules Governing Section 2255 Proceedings.

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SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
April 6, 2012
cc:

Leif Anderson, pro se
Benjamin L. Falkner, Esq.
Seth R. Aframe, AUSA

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