Ajaj v. United States of America

Filing 23

MEMORANDUM AND ORDER: Movant filed a letter with the Court requesting that his appointed federal defender withdraw as counsel and the Court appoint new counsel. [16-cv-5031 DI 22; 93-cr-0180 DI 947, 949]. In the alternative, movant requests that he be permitted to file a pro se response to the government's letter of March 19, 2020 [93-cr-180 DI 945]. Accordingly, insofar as movant seeks appointment of counsel, his application is denied. Insofar as he alternatively seeks to file a pro se reply to the government's submission, his application is granted. Any pro se response to the government shall be filed no later than August 24, 2020. (And as further set forth herein.) SO ORDERED. (Signed by Judge Lewis A. Kaplan on 6/24/2020) (jca)

Case 1:16-cv-05031-LAK Document 23 Filed 06/24/20 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- x
AHMAD MOHAMMAD AJAJ,
Movant,
-against

16-cv 503 1 (LAK)
-cr 0180 (LAK))
(93

UNITED STATES OF AMERICA,
Respondent.
--------------------------------------- x

MEMORANDUM AND ORDER
LEWIS A. KAPLAN, District Judge.

Movant filed a letter with the Court requesting that his appointed federal defender
withdraw as counsel and the Court appoint new counsel. [16-cv-503 1 DI 22; 93-cr 0180 DI 947,
949]. In the alternative, movant requests that he be permitted to file a pro se response to the
government's letter of March 19, 2020 [93-cr 180 DI 945]. In light of movant's letter, his attorney,
Robert Baum, filed a motion to be relieved and requested that the Court assign new counsel. [93-cr
xplained that "it appears clear that [movant] has lost confidence in
180 DI 950]. Mr. Baum e
counsel, and that the attorney client relationship is irreparably damaged." [Id.]
Mr. Baum was appointed in this matter through Standing Orders in which the chief
judge appointed the Federal Defenders of New York to represent eligible prisoners in their Section
2255 petitions that were based on Johnson v. United States, 13 5 S.Ct. 2551 (2015). In re: Motions
for Sentencing Reductions Under 28 USC.§ 2255 in Light of Johnson v. United States, 15 Misc.
373 (S.D.N.Y. Nov. 18, 2015); In re: Petitions Under 28 USC. §§ 2255 and 2241 in Light of
Johnson v. United States, 16 Misc. 217 (S.D.N.Y. June 8, 2016). 1 Mr. Baum filed a notice of
appearance in movant's case on August 16 , 2016 . [93-cr 0180 DI 870].
Counsel has shown a satisfactory reason for withdrawal, consistent with Local Civil
Rule 1.4. Counsel's motion to be relieved [93-cr 0180 DI 950], and in tum, movant's request that
his counsel withdraw, is granted.
Movant' s request for new counsel, however, is denied. There is no Sixth Amendment

Contrary to movant's apparent assumption, see DI 947, he was not appointed as counsel to
movant for all purposes or even for all purposes with respect to possibilities for relief
under§ 2255.

Case 1:16-cv-05031-LAK Document 23 Filed 06/24/20 Page 2 of 2

2
right to counsel in habeas corpus proceedings. Harris v. United States, 367 F.3d 74, 77 (2d Cir.
2004) (citing Coleman v. Thompson, 501 U.S. 722, 752-53 (1991). This includes the right to
counsel ofchoice. United States Sec. and Exch. Comm 'n. v. fllarramendi, 732 F.App'x 10, 14 (2d
Cir.2018). Nonetheless, under the Criminal Justice Act, the Court may appoint counsel for "any
financially eligible person who is seeking reliefunder ... section 2255 oftitle 28" ifit "determines
that the interests ofjustice so require." 18 U.S.C. § 3006A(a)(2)(B). The key word is "may."
Appointment lies within the discretion ofthe district court.
"The likelihood that a movant's or prospective movant's claims have merit is central
to the determination whether the interests ofjustice warrant the appointment of counsel at public
expense." UnitedStates v. El-Hage, No. S7 98-cr-1023 (LAK),2016 WL 1178817,at *2 (S.D.N.Y.
Mar. 21, 2016) (footnote omitted). Insofar as movant seeks another lawyer to represent him
concerning Johnson-Davis issues, my decision of even date shows that there is no substantial
likelihood of success. Insofar as movant seeks another lawyer to investigate or advance other,
unspecified possible arguments, the Court is left without sufficient information to make an informed
judgment that any such claims haves any likely merit.
Accordingly, insofar as movant seeks appointment of counsel, his application is
denied. Insofar as he alternatively seeks to file a pro se reply to the government's submission, his
application is granted. Any pro se response to the government shall be filed no later than August
24, 2020.

SO ORDERED.
Dated:

June 24, 2020
Lewi A. Kaplan
United States District Judge