Sandoval-Ochoa v. USA

Filing 4

MEMORANDUM DECISION AND ORDER denying appointment of counsel; granting leave to file an Amended 2255 Motion by no later than 5/12/17. Signed by Judge David Nuffer on 4/13/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SALVADOR SANDOVAL-OCHOA,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
APPOINT COUNSEL AND GRANTING
LEAVE TO FILE AMENDED § 2255
MOTION, AND NOTICE

UNITED STATES OF AMERICA,
Defendant.

Civil No. 2:16-CV-1052-DN
(Crim. No. 2:15-CR-91-DN)
District Judge David Nuffer

Petitioner Salvador Sandoval-Ochoa requests the appointment of counsel in this case
brought under 28 U.S.C. § 2255. 1 There is no constitutional or statutory right to the appointment
of counsel in § 2255 proceedings, unless an evidentiary hearing is held. 2 Nevertheless, counsel
may be appointed when “the interests of justice so require” for a “financially eligible person”
seeking relief under § 2255. 3
After review and consideration of Mr. Sandoval-Ochoa’s filings, justice does not require
the appointment of counsel at this time. It is yet unclear that Mr. Sandoval-Ochoa has asserted
any colorable basis for relief from his sentence. Mr. Sandoval-Ochoa, through his filing, 4 has
also shown an “ability to investigate the facts necessary for [the] issues and to articulate them in

1

Petitioner’s Motion Seeking Appointment of Counsel, Pursuant to Title 18 U.S.C. § 3006A, and Petitioner
Preserves the Johnson Case for Future Litigation 135 S.Ct. 2551 (2015), docket no. 1, filed June 27, 2016.

2

Paul v. United States, 2006 WL 314563, *1 (D. Utah Feb. 9, 2006); Rules Governing Section 2255 Proceedings for
the United States District Courts 8(c).

3
4

18 U.S.C. 3006A(a)(2)(B).

Petitioner’s Motion Seeking Appointment of Counsel, Pursuant to Title 18 U.S.C. § 3006A, and Petitioner
Preserves the Johnson Case for Future Litigation 135 S.Ct. 2551 (2015), docket no. 1, filed June 27, 2016.

a meaningful fashion.” 5 Additionally, the issues Mr. Sandoval-Ochoa raises appear to be
“straightforward and not so complex as to require counsel’s assistance.” 6 Therefore, Mr.
Sandoval-Ochoa’s request for the appointment of counsel 7 is DENIED. However, if it later
appears that counsel may be needed or of specific help, an attorney will be appointed to appear
on Mr. Sandoval-Ochoa’s behalf.
Mr. Sandoval-Ochoa also requests leave to file an amended § 2255 motion 8 raising a
claim for relief based on the United States Supreme Court’s opinion in Johnson v. United
States. 9 Given that Mr. Sandoval-Ochoa’s filing 10 does not comply with the pleading
requirements for a § 2255 motion, 11 it is appropriate that his request for leave to file an amended
§ 2255 motion 12 be GRANTED.
ORDER
IT IS HEREBY ORDERED that Mr. Sandoval-Ochoa’s request for the appointment of
counsel 13 is DENIED. However, if it later appears that counsel may be needed or of specific
help, an attorney will be appointed to appear on Mr. Sandoval-Ochoa’s behalf.

5

United States v. Lewis, 1998 WL 1054227, *3 (D. Kan. Dec. 9, 1998); Oliver v. United States, 961 F.2d 1339,
1343 (7th Cir. 1992).
6

Lewis, 1998 WL 1054227, *3; Oliver, 961 F.2d at 1343.

7

Petitioner’s Motion Seeking Appointment of Counsel, Pursuant to Title 18 U.S.C. § 3006A, and Petitioner
Preserves the Johnson Case for Future Litigation 135 S.Ct. 2551 (2015), docket no. 1, filed June 27, 2016.

8

Id.

9

135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

10

Petitioner’s Motion Seeking Appointment of Counsel, Pursuant to Title 18 U.S.C. § 3006A, and Petitioner
Preserves the Johnson Case for Future Litigation 135 S.Ct. 2551 (2015), docket no. 1, filed June 27, 2016.

11

Rules Governing Section 2255 Proceedings for the United States District Courts 2, 3.

12

Petitioner’s Motion Seeking Appointment of Counsel, Pursuant to Title 18 U.S.C. § 3006A, and Petitioner
Preserves the Johnson Case for Future Litigation 135 S.Ct. 2551 (2015), docket no. 1, filed June 27, 2016.

13

Id.

2

IT IS FURTHER HEREBY ORDERED that Mr. Sandoval-Ochoa’s request for leave to
file an amended § 2255 motion 14 raising a claim for relief based on the United States Supreme
Court’s opinion in Johnson 15 is GRANTED. Mr. Sandoval-Ochoa must file his amended § 2255
motion by no later than May 12, 2017.
NOTICE
NOTICE IS HEREBY GIVEN that on March 6, 2017, the United States Supreme Court
issued its decision in Beckles v. United States. 16 In Beckles, 17 the Supreme Court addressed
whether the analysis of Johnson 18 and Welch v. United States 19 apply to render the residual
clause of USSG § 4B1.2(a), defining “crime of violence,” unconstitutionally vague. The
Supreme Court concluded that it did not, holding that “the advisory Guidelines are not subject to
a vagueness challenge under the Due Process Clause and that [USSG] § 4B1.2(a)’s residual
clause is not void for vagueness.” 20
Mr. Sandoval-Ochoa is encouraged to review the Beckles 21 decision and determine its
applicability to the claim for relief he intends to include in his amended § 2255 motion. If, after
reviewing the Beckles 22 decision, Mr. Sandoval-Ochoa believes his intended claim is without
merit, he may file a notice of voluntarily dismissal of this case. Otherwise, he may proceed with
the filing of his amended § 2255 motion. However, Mr. Sandoval-Ochoa is cautioned that if he

14

Id.

15

135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

16

137 S.Ct. 886 (2017).

17

Id.

18

135 S.Ct. 2551.

19

136 S.Ct. 1257.

20

137 S.Ct. at 895.

21

Id.

22

Id.

3

files the amended § 2255 motion, and it is dismissed on its merits, any “second or successive
[§ 2255] motion must be certified as provided in [28 U.S.C. §] 2244 by a panel of the appropriate
court of appeals to contain--(1) newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 23
Signed April 13, 2017.
BY THE COURT

________________________________________
District Judge David Nuffer

23

28 U.S.C. § 2255(h); see also Rules Governing Section 2255 Proceedings for the United States District Courts 9.

4