Ajaj v. United States of America

Filing 36

MEMO ENDORSEMENT denying 30 APPLICATION for the Court to Request Counsel. ENDORSEMENT: Movant seeks appointment of counsel (1) on his pending Section 2255 motion, (2) to investigate and advance other grounds for relief, (3) to respond to any obje ctions by the government to dismissal of count 9, and (4) to seek a full resentencing in light of the dismissal of count 10. Standards Governing the Application for Appointment of Counsel The Merits As this Court wrote in denying movant's most recent motion for appointment of counsel: "There is no Sixth Amendment 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 inc ludes the right to counsel of choice. United States Sec. and Exch. Comm 'n. v. Illarramendi, 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 relief under...section 2255 of title 28' if it 'determines that the interests of justice so require.' 18 U.S.C. § 3006A(a)(2)(B). The key word is ' may.' Appointment lies within the discretion o f the district court. 'The likelihood that a movant's or prospective movant's claims have merit is central to the determination whether the interests of justice warrant the appointment of counsel at public expense.' United State s v. El-Hags, 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 subs tantial 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 lik ely merit." United States v. Ajaj, 93-cr-0180 (LAK), Dkt. 958, at 1-2 (S.D.N.Y. June 24, 2020). Movant has shown no substantial likelihood of success on his pending 2255 motion, which is dispositive with respect to his points 1, 3 and 4. With respect to point 4, Movant is essentially identically situated with defendant Ayyad, whose counsel (Federal Defenders) unsuccessfully sought a full resentencing, Ayyadv. United States, No. 93-cr-0180 (LAK), 2020 WL 50 18163 (S.D.N.Y. Aug. 24, 2020 ), which of course bodes ill for this movant. Moreover, this Court may issue a certificate of appeal ability only upon "a substantial showing of the denial ofa constitutional right." 28 U.S.C. § 2253(c)(2). The assertion that movant should be granted a full resentencing, especially on the facts of this case, does not constitute such a showing. Finally, it would be inappropriate to appoint counsel now "to investigate and advance other claims for relief' and premature to do so to respond to any objections the government "may" raise. Conclusion The motion (93-cr-0 180 Dkt 987, 16cv-5031 Dkt 30) is denied. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 11/29/2020) (jca) Modified on 11/30/2020 (jca).