Rishor v. USA

Filing 13

ORDER granting Petitioner's 8 MOTION to Appoint Counsel (limited request) and refers this matter to the Pro Bono Panel. Once counsel has been found and appointed, the Court will issue a briefing schedule for both sides on the pending petition 1 . The remainder of this matter will be STAYED until that time. Signed by Judge Marsha J. Pechman. (PM) cc: S Haas, petitioner via first class mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KIRK RISHOR,
Petitioner,

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CASE NO. C18-708 MJP

v.

ORDER RE: GOVERNMENT’S
RESPONSE TO PETITION AND
MOTION TO APPOINT COUNSEL

UNITED STATES OF AMERICA,
Respondent.

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Petitioner has filed a Motion Under U.S.C. § 2255 to Vacate, Set Aside, or Correct

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Sentence (Dkt. No. 1). The Government has filed a procedural objection to the petition, alleging

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that it represents a second or successive 2255 petition and as such requires Petitioner to obtain

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leave from the Ninth Circuit Court of Appeals before it can be heard in this Court. (Dkt. No.

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10.) The Court stayed Petitioner’s pending Motion for Appointment of Counsel (Dkt. No. 8) in

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order to address this procedural objection, and Petitioner has filed his Reply to Government’s

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Response. (Dkt. No. 12.)

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ORDER RE: GOV’T RESPONSE & APPT OF COUNSEL - 1

The Court agrees with Petitioner. The “first 2255 petition” 1 to which the Government

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refers in its briefing concerned a federal criminal conviction against Mr. Rishor in Case No.

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CR10-378. (See Case No. C14-1996.) The current 2255 petition (which the Government is

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characterizing as “second or successive”) is in fact a separate petition on a separate issue;

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namely, ineffective assistance of counsel in regard to an appeal filed in Case No. C11-1492

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(which concerns a state court conviction which Petitioner is challenging).

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It is the Court’s understanding the “second or successive petition” provision of 28 U.S.C.

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§ 2255 applies to petitions filed regarding the same conviction. As such, the prohibition against

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filing a second or successive petition without leave of the Ninth Circuit Court of Appeals has not

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been triggered by Mr. Rishor’s filing of a 2255 petition on a separate criminal matter.

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Therefore, the Government will be required to respond substantively to the current 2255

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petition. Before setting a briefing schedule, however, the Court turns to Petitioner’s request for

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appointment of counsel, which is narrowly tailored to request assistance in obtaining “transcripts,

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filings and motions related to Washington State Superior Case Number 04-1-00218-7, and

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Washington State Division One Court of Appeals Number’s 59609-8-I and 64050-0-I.” (Dkt.

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No. 8 at 1.)

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The Court GRANTS Petitioner’s limited request for appointment of counsel and refers

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this matter to the Pro Bono Panel for identification of an attorney who can assist Petitioner in the

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manner he requires. Once counsel has been found and appointed, the Court will issue a briefing

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schedule for both sides on the pending petition. The remainder of this matter will be STAYED

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until that time.

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The Government is correct that there was a previous 2255 petition dismissed without prejudice (see Dkt. No. 11 at
C12-2180MJP) which the Court is not including in this “tally” of 2255 petitions.

ORDER RE: GOV’T RESPONSE & APPT OF COUNSEL - 2

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The clerk is ordered to provide copies of this order to Petitioner and to all counsel.

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Dated October 4, 2018.

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A
The Honorable Marsha J. Pechman
United States Senior District Court Judge

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ORDER RE: GOV’T RESPONSE & APPT OF COUNSEL - 3