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Latham v. United States

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


July 24, 2008

KENDRICK D. LATHAM, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court following the mandate of the United States Court of Appeals reversing and remanding this case for a decision on the merits (Doc. 45) and on petitioner Kendrick D. Latham's ("Latham") motion for appointment of counsel and a hearing (Doc. 44).

As for Latham's request for appointment of counsel, whether to appoint an attorney to represent an indigent § 2255 petitioner is within the sound discretion of the district court. Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997). There is absolutely no right to appointment of counsel case unless the absence of counsel would result in fundamental unfairness impinging on due process rights, Winsett, 130 F.3d at 281 (citing LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967)); see 18 U.S.C. § 3006A(a)(2)(B) ("Whenever . . . the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section . . . 2255 of title 28."). Counsel is required to be appointed only "'if, given the difficulty of the case and the litigant's ability, [the petitioner] could not obtain justice without an attorney, [he] could not obtain a lawyer on [his] own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side.'" Id. (quoting Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997)).

Latham has demonstrated in his petition and subsequent filings that he is well able to articulate his arguments and is able to obtain justice without an attorney. Furthermore, the Court believes that the absence of counsel at this stage in the case would not result in an unfair proceeding impinging on Latham's due process rights. Latham's motion (Doc. 44) is DENIED.

As for Latham's request for a hearing, the Court DENIES the motion (Doc. 44) without prejudice. Should the Court determine after reviewing the full briefing that a hearing is necessary, it will schedule one at that time.

The Court further ORDERS the government to respond to the remaining claims in Latham's motion, amended motion and supplements (Docs. 1, 3, 13 & 14) on or before August 29, 2008. The Government shall, as part of its response, attach all relevant portions of the record.

IT IS SO ORDERED.

20080724

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