LEVAN v. UNITED STATES OF AMERICA

Filing 2

MEMORANDUM AND ORDER, the Clerk shall administratively terminate this matter; subject to reopening in 30 days if Petitioner files a motion under 28 U.S.C. § 2255 on the proper form, etc. Case Closed. Signed by Judge Renee Marie Bumb on 6/2/15. (js)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PAUL LEVAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civ. Action No. 15-3536(RMB)

MEMORANDUM AND ORDER

BUMB, District Judge:
This matter is before the Court upon Petitioner’s selfstyled “Motion for Appointment of Counsel to Investigate Newly
Discovered Evidence, and for Reconsideration of Concurrency of
Sentence Pursuant to 28 U.S.C. § 2255.” (ECF No. 1.) Petitioner
asserts the Court has jurisdiction to entertain his motion for
appointment of counsel prior to his filing of “a formal § 2255
motion” because his underlying criminal case satisfies the
Article III case and controversy requirement, quoting U.S. v.
Thomas, 713 F.3d 165 (3d Cir. 2013). (ECF No. 1 at 1-2.)
Petitioner seeks counsel to investigate alleged newly discovered
evidence that might form a basis for bringing a motion under 28
U.S.C. § 2255. (ECF No. 1 at 4-7.)

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At sentencing, the Government argued Petitioner should be
given consecutive sentences because he arranged and supplied
$3,000 toward a drug conspiracy, making him more than a minor
participant, as Petitioner alleged. (Id. at 5-6.) The crux of
Petitioner’s motion is that he believes the Government’s
informant was the person who sent Petitioner’s co-defendant
$3,000 in support of the drug conspiracy. (Id.) Thus, the
Government should not have argued for consecutive sentencing
when Petitioner pled guilty. (Id.)
Petitioner alleged that he recently discovered the
Government’s informant was conspiring with a prison guard to
sell tobacco in prison. (Id. at 4-5.) In the week of December
20, 2010, the guard received $5,000 to purchase tobacco. (Id. at
5.) Petitioner stated, “It is believed that [the informant]
instructed [the prison guard] to take $3000 out of the $5000 . .
. and send it to Petitioner’s co-defendant . . .” (Id.)
Petitioner’s co-defendant testified that he received $3,000 in
the mail from someone he believed was acting on Petitioner’s
behalf. (Id.) This was the basis for Petitioner’s consecutive
sentencing.
Petitioner contends the Government withheld Brady material
concerning the informant’s illegal activities in prison, and
this was relevant to Petitioner’s plea agreement and sentencing.
(Id. at 8.) Petitioner, however, has provided nothing more than
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his belief that the $3,000 attributed to Petitioner’s role in a
drug conspiracy was actually provided to his co-defendant by the
informant. Petitioner’s theory is not new. In his Sentencing
Memorandum, Petitioner argued the informant was responsible for
the $3,000 payment in the drug conspiracy, although Petitioner
did not know where the money came from. (ECF No. 1-1 at 5,
Exhibit 1, Sentencing Memorandum.) Petitioner has not provided
any reason for the Court to believe that the Government had
knowledge that the informant, rather than Petitioner, was
responsible for the $3,000 payment. Thus, the Court will deny
Petitioner’s request to appoint counsel to investigate this
matter.
IT IS therefore on this 2nd day of June 2015,
ORDERED that the Clerk shall administratively terminate
this matter; subject to reopening in 30 days if Petitioner files
a motion under 28 U.S.C. § 2255 on the proper form; and it is
further
ORDERED that the Clerk mail a copy of this Memorandum and
Order, together with a blank form “Motion to Vacate, Set Aside,
or Correct a Sentence by a Person in Federal Custody Under 28
U.S.C. 2255,” to Petitioner by regular U.S. Mail.
s/Renée Marie Bumb_____
RENÉE MARIE BUMB
United States District Court

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