Lopez v. Merlak
Memorandum and Order granting 12 Petitioner's Motion to supplement; denying 13 Petitioner's Motion for appointment of counsel. Magistrate Judge David A. Ruiz on 2/12/2018. (G,W)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Case No. 4:17CV0621
JUDGE JAMES S. GWIN
MAGISTRATE JUDGE DAVID A. RUIZ
MEMORANDUM AND ORDER
Baldomero Lopez has filed a petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241. The petition is before the magistrate judge pursuant
to Local Rule 72.2. The petitioner is in the custody of the Federal Correctional
Institution Elkton pursuant to journal entry of sentence in the case of United
States v. Lopez, Case No. 7:04CR10 (M.D. Ga. Dec. 21, 2004). (R. 1, PageID #: 2.)
Currently before the court are two motions filed by the pro se petitioner, a Motion to
Supplement his habeas petition with additional argument in support (R. 12), and a
Motion to Request the Assignment of Counsel (R. 13).
The underlying petition stems from Lopez’s 2004 convictions for possession
with the intent to distribute (1) crack cocaine and (2) marijuana, in the Middle
District of Georgia, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and
841(b)(1)(D), pursuant to a guilty plea. (R. 1, PageID #: 2; R. 8, PageID #: 32-33.)
In his petition, Lopez challenges his designation as a Career Offender under the
United States Sentencing Guidelines, and raises the following arguments in
1. Lopez is authorized to challenge the erroneous career offender
designation under 28 U.S.C. § 2241.
2. Descamps and Mathis both qualify as new statutory interpretations
by the Supreme Court, which are retroactive. 1
3. The Florida burglary statute in effect in 1988 does not qualify as a
predicate offense for either ACCA or the Guidelines Career Offender
4. The district court’s erroneous application of the Career Offender
sentence enhancement in this case constitutes a fundamental error
that resulted in a miscarriage of justice.
(R. 1, PageID #: 4, 5, 7, 9.) The respondent has filed a brief in opposition (R. 8), and
Lopez has filed a reply (R. 11).
Lopez has since filed a Motion to Supplement, which is unopposed. Lopez
asserts that the motion “is solely intended to amend the Original Motion,” but no
new claims or amendments are asserted. The motion simply provides additional
argument. See generally R. 12. The motion to supplement is GRANTED as
The motion for counsel is based on the petitioner’s status as a layperson who
is not a native speaker of English (although he can speak, read, and understand it).
The cases cited are Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276
(2013), and Mathis v. United States, 579 U.S. ___, 136 S.Ct. 894 (2016).
(R. 13.) Lopez asserts that he requires professional assistance, and would prefer
counsel who speaks Spanish and English. See generally id.
There is no constitutional or statutory right to counsel in habeas proceedings,
except for those prisoners under a capital sentence. Morris v. Dormire, 217 F.3d
556, 558 (8th Cir.), cert. denied, 531 U.S. 984 (2000) (citing 28 U.S.C. § 2261). See
also Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002), cert. denied, 538 U.S. 984
(2003) (citing McCleskey v. Zant, 499 U.S. 467, 495 (1987)); McKethan v. Mantello,
292 F.3d 119, 123 (2d Cir. 2002); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir.
1994). Rather, “the right to appointment of counsel extends to the first appeal of
right, and no further.” McCleskey, 499 U.S. at 495 (quoting Pennsylvania v. Finley,
481 U.S. 551, 555 (1987).)
A district court may appoint counsel for a habeas petitioner when “the
interests of justice so require.” Hoggard, 29 F.3d at 471 (citing 18 U.S.C.A. §
3006A(a)(2)). The decision whether to appoint counsel is left to the sound discretion
of the district court. Morris, 217 F.3d at 558-559. The appointment of counsel is
discretionary, when it has been determined that no evidentiary hearing is
necessary. Hoggard, 29 F.3d at 471; Reese v. Fulcomer, 946 F.2d 247, 264 (3d Cir.
1991), cert. denied, 503 U.S. 988 (1992). Federal courts have not developed a
uniform approach to motions for appointment of counsel.
In McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997), the Eighth Circuit
suggested “several factors to guide a district court when it evaluates whether a
petitioner needs court appointed counsel. These include the factual and legal
complexity of the case, and the petitioner’s ability both to investigate and to
articulate his claims without court appointed counsel.” See also Hoggard, 29 F.3d
at 471 (same). In Sellers v. United States, the district court considered “the viability
or frivolity of the indigent’s claims, the nature and complexity of the case, and the
indigent’s ability to present the case.” Sellers v. United States, 316 F.Supp.2d 516,
522 (E.D. Mich. 2004).
The court has reviewed the record, and the grounds of Lopez’s petition. The
court has considered the factors discussed in McCall and Sellers. The claims and
issues raised in the petition are not complex, in the habeas context. The claims and
issues raised in the petition can be properly analyzed on the court record and the
parties’ filings. See, e.g., Hoggard, 29 F.3d at 471.
For the foregoing reasons, the motion to supplement (R. 12) is GRANTED as
unopposed. The motion for counsel (R. 13) is DENIED.
IT IS SO ORDERED.
s/ David A. Ruiz
David A. Ruiz
United States Magistrate Judge
Date: February 12, 2018
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