AHMED v. UNITED STATES OF AMERICA
MEMORANDUM OPINION filed.. Signed by Judge Anne E. Thompson on 3/30/2017. (mps)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
APR 0 5 2017
WILLIAM T. WALSH
HONORABLE ANNE E. THOMPSON
No. 16-8259 (AET)
UNITED STATES OF AMERICA,
THOMPSON, District Judge
This matter comes before the Court on Petitioner's motion
for the appointment of pro bono counsel, Docket Entry 4; motion
for an evidentiary hearing, Docket Entry 5; and motion to
reschedule the evidentiary hearing,
Docket Entry 9.
Petitioner is challenging his federal conviction and
sentence under 28 U.S.C. § 2255, which provides in relevant part
that "[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States ... may move the
court which imposed the sentence to vacate, set aside or correct
the sentence." 28 U.S.C. § 2255(a).
This motion was incorrectly entered onto the docket as a second
motion for an evidentiary hearing.
A district court must hold an evidentiary hearing on a
§ 2255 motion unless the "motion and the files and records of
the case conclusively show" that the movant is not entitled to
relief. 28 U.S.C. § 2255(b); see also United States v. Booth,
432 F.3d 542, 545-46 (3d Cir. 2005).
Petitioner's request for an evidentiary hearing is
premature. On March 16, 2017, the Court directed the United
States to answer the motion within 60 days. Until the United
States answers the petition and provides the remainder of the
record, the Court cannot determine whether an evidentiary
hearing is warranted under§ 2255(b). The motion for an
evidentiary hearing is denied without prejudice. The Court will
revisit this decision upon receipt and review of the answer and
Petitioner's motion to reschedule the evidentiary
hearing is dismissed as moot. Docket Entry 9. The motion was
filed under the mistaken belief that an evidentiary hearing had
been scheduled for December 5, 2016, which was the return date
of Petitioner's motion for an evidentiary hearing. No hearing
was ever scheduled for that date; therefore the motion to
reschedule is dismissed as moot.
Petitioner has also requested the appointment of pro
bono counsel, Docket Entry 4. There is no constitutional right
to counsel for litigants in a civil case, including § 2255
proceedings. See Parham v. Johnson, 126 F.3d 454, 456 (3d Cir.
1997). District courts may, however, appoint counsel in certain
circumstances. Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993).
In the event the Court conducts an evidentiary hearing, counsel
must be appointed. 28 U.S.C. § 2255 Rule 8(c).
The Court finds that the appointment of counsel is not
warranted at this time. In deciding whether to appoint pro bono
counsel, the Court first must consider whether Petitioner's
claim "has some merit in fact and law." Tabron,
6 F.3d at 155
(quotation omitted). As the petition survived the Court's
initial review under Rule 4 of the Rules Governing § 2255
Proceedings, there is sufficient merit to continue analyzing the
Under Tabron, the Court must consider (1) Petitioner's
ability to present his case;
(2) the complexity of the legal
(3) the degree to which factual investigation will be
necessary and Petitioner's ability to pursue such investigation;
(4) the amount a case is likely to turn on credibility
determinations; (5) whether the case will require the testimony
of expert witnesses; and (6) whether Petitioner can attain and
afford counsel on his own behalf. Parham, 126 F.3d at 457
6 F.3d at 155-56, 157 n.5).
Petitioner has not addressed any of these factors in
his motion, and it appears to the Court at this time that he is
able to adequately present his case on his own. The Court will
therefore deny the motion without prejudice and will continue to
assess Petitioner's continued ability to present his case.
Should the need for counsel arise, the Court will appoint an
attorney sua sponte. Petitioner may renew his request for
appointment of counsel by filing a motion addressing the Tabron
factors at any time during this action.
An appropriate order follows.
U.S. District Judge
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