Barber v. USA

Filing 15

ORDER denying 13 Motion for Certificate of Appealability; granting 14 Motion to Appoint Counsel. Signed by District Judge Frank D. Whitney on 11/26/2012. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-243-FDW
(3:07-cr-61-FDW-4)
CHAVIUS MARQUETTE BARBER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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ORDER

THIS MATTER is before the Court on Petitioner’s Motion to File a Successive
Petition,1 (Doc. No. 13), and on Petitioner’s Motion to Appoint Counsel, (Doc. No. 14).
First, with respect to Petitioner’s Motion to File a Successive Petition, Petitioner states
that he wishes to file a successive petition to raise claims under the Fourth Circuit’s en banc
ruling in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). The motion was filed in the
incorrect Court, as Petitioner must seek permission from the Fourth Circuit Court of Appeals,
not this Court. See 28 U.S.C. § 2255(h). For this reason, Petitioner’s motion will be denied.
Next, with respect to Petitioner’s Motion to Appoint Counsel, Petitioner states that he
would like counsel appointed in light of Simmons. This Court’s Standing Order, dated May 22,
2012, provides, in part, that:
the Federal Defenders of the Western District of North Carolina (FDWNC) are
hereby appointed to represent any defendant previously determined to have been
entitled to appointment of counsel, or who is now indigent, to determine whether
that defendant may qualify for post-conviction relief pursuant [to] United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011), and if so, to assist the defendant in

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Petitioner’s Motion is incorrectly docketed as a Motion for Certificate of Appealability.
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obtaining such relief. This appointment is limited to cases affected, or potentially
affected, by United States v. Simmons and, except upon motion of counsel and
approval by this Court, will terminate upon a determination by appointed counsel
that the defendant is not eligible for relief or, if eligible for relief, upon
exhaustion of the defendant’s post-conviction remedies.
In light of the Court’s Standing Order, the Court will grant Petitioner’s motion for
appointment of counsel to the extent that such appointment of counsel is consistent with this
Court’s Standing Order.
IT IS THEREFORE ORDERED that:
(1)

Petitioner’s Motion to File a Successive Petition is DENIED, (Doc. No. 13), as
this Court lacks jurisdiction to consider the motion.

(2)

Petitioner’s Motion to Appoint Counsel, (Doc. No. 14), is GRANTED to the
extent that it is consistent with the Court’s Standing Order dated May 22, 2012.

(3)

The Clerk of Court is directed to mail this Order to the Federal Defenders of
Western North Carolina.

Signed: November 26, 2012

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