Schavey v. USA

Filing 5

MEMORANDUM DECISION AND ORDER denying without prejudice 4 Motion to Appoint Counsel. Signed by Judge Ted Stewart on 7/5/2017. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RAYMOND CHARLES SCHAVEY,

MEMORANDUM DECISION AND
ORDER DENYING WITHOUT
PREJUDICE PETITIONER’S MOTION TO
APPOINT COUNSEL

Petitioner,
v.
UNITED STATES OF AMERICA,

Civil Case No. 2:17-CV-379 TS
Criminal Case No. 2:16-CR-63 TS

Respondent.

District Judge Ted Stewart

This matter is before the Court on Petitioner’s Motion to Appoint Counsel. Petitioner
seeks the appointment of counsel to assist in his recently filed motion under 28 U.S.C. § 2255.
“[T]here is no right to counsel in collateral proceedings.” 1 Only when an evidentiary
hearing is required is a defendant entitled to counsel. 2 The decision to appoint counsel is left to
the sound discretion of the Court. 3 “In determining whether to appoint counsel, the district court
should consider a variety of factors, including the merits of the litigant’s claims, the nature of the
factual issues raised in the claims, the litigant’s ability to present his claims, and the complexity
of the legal issues raised by the claims.” 4

1

United States v. Prows, 448 F.3d 1223, 1229 (10th Cir. 2006); see also Pennsylvania v.
Finley, 481 U.S. 551, 555 (1990) (stating that “the right to appointed counsel extends to the first
appeal of right, and no further”).
2

Rule 8(c) of the Rules Governing § 2255 Proceedings for the United States District

3

Engberg v. Wyo., 265 F.3d 1109, 1122 (10th Cir. 2001).

4

Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).

Courts.

1

Considering these factors, the Court declines to appoint counsel at this time. However,
the Court will grant Petitioner additional time to file his reply brief based on his representation
that prison lockdowns have interfered with his ability to research the issues raised in his § 2255
motion.
It is therefore
ORDERED that Petitioner’s Motion to Appoint Counsel (Docket No. 4) is DENIED
WITHOUT PREJUDICE. Petitioner’s reply brief is due by August 7, 2017.
DATED this 5th day of July, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

2