Fierro-Rascon v. USA
ORDER denying petitioner Humberto Fierro-Rascon's 13 Motion for Appointment of Counsel, 14 Application to Proceed Without Prepayment of Fees and Affidavit. Signed by District Judge James D. Peterson on 11/7/2017. (jef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
UNITED STATES of AMERICA,
Petitioner Humberto Fierro-Rascon filed a motion to vacate his conviction and sentence
under 28 U.S.C. § 2255. Dkt. 1. I reviewed the petition and concluded that two of his four
claims were barred, and the other two were procedurally defaulted, but I gave Fierro-Rascon
the opportunity to try and overcome the defaults. Fierro-Rascon responded, contending that
his counsel was ineffective and caused him to default on the claims. But he failed to explain
how his appellate counsel’s alleged error prejudiced him, so he failed to overcome his default.
As a result, I dismissed his petition. Dkt. 5. Fierro-Rascon moved for reconsideration of my
ruling. I denied his motion. Dkt. 9. He then moved for relief from judgment under Federal
Rule of Civil Procedure 60(b)(1). I denied that motion, too. Dkt. 12.
§ 3006A(a)(2)(B) so that he may “move forward with his two claims.” Dkt. 13, at 2. That
statutory section allows appointment of counsel for a financially eligible person seeking relief
under § 2255 when “the interests of justice so require.” Fierro-Rascon’s case has been closed
for over a year. I have considered his arguments in his original petition, his motion for
reconsideration, and his Rule 60(b) motion. None of them had merit. There is no reason to
appoint counsel to represent Fierro-Rascon in his § 2255 petition because that petition has
already been denied. So I will deny Fierro-Rascon’s motion for appointment of counsel. I will
also deny his application to proceed without prepayment of fees as moot. Dkt. 14.
IT IS ORDERED that:
1. Petitioner Humberto Fierro-Rascon’s motion for appointment of counsel, Dkt. 13,
2. Petitioner’s application to proceed without prepayment of fees, Dkt. 14, is DENIED
Entered November 7, 2017.
BY THE COURT:
JAMES D. PETERSON
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