IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
August 4, 2010
DAVID SCOTT CORBIN, PETITIONER/DEFENDANT,
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.
The opinion of the court was delivered by: Reagan, District Judge
MEMORANDUM AND ORDER
This matter is before the court on Petitioner David Scott Corbin's Motion under 28 U.S.C. § 2255. Corbin seeks leave to proceed in forma pauperis (Doc. 2), and the Court finds that he is indigent. Therefore, the motion to proceed in forma pauperis is GRANTED.
Corbin also seeks appointment of counsel in this matter (Doc. 3). A section 2255 proceeding is an independent civil suit for which there is no constitutional right to appointment of counsel. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). See also Powell v. Davis, 415 F.3d 722. 727 (7th Cir. 2005); Pitsonbarger v. Gramley, 141 F.3d 728, 737 (7th Cir. 1998); Oliver v. United States, 961 F.2d 1339 (7th Cir. 1992); Rauter v. United States, 871 F.2d 693 (7th Cir. 1989). Rule 8(c) of the Rules Governing Section 2255 Proceedings, however, allows for appointment of counsel for indigent prisoners if an evidentiary hearing is required. See 18 U.S.C. § 3006A(a)(2)(B); FED. R. § 2255 Cases 8(c). At this time, an evidentiary hearing is not warranted, and thus the motion for appointment of counsel is DENIED, without prejudice. It follows that Corbin's motion to expedite a hearing (Doc. 4) is DENIED without prejudice.
Pursuant to a plea agreement, Corbin pleaded guilty to charges involving the manufacture and distribution of methamphetamine. On October 10, 2006, he was sentenced to 188 months imprisonment, six years supervised release, a $750 fine, and a $100 special assessment. No direct appeal was filed. Corbin sought relief pursuant to 28 U.S.C. § 2255, but later voluntarily dismissed the motion. Corbin v. United States, Case No. 07-cv-650-MJR (S.D. Ill., filed Sept. 14, 2007).
In 2008, Corbin sought leave with the Seventh Circuit to file a second or successive § 2255 motion. At that time, he sought leave to file a new § 2255 motion based upon the Supreme Court's April 2008 decision that a DUI conviction is not a crime of violence for purposes of the Armed Career Criminal Act ("ACCA"). See Begay v. United States, 128 S.Ct. 1581 (2008). That motion was denied as unnecessary, "because he voluntarily dismissed his first § 2255 motion before the government had responded." Corbin v. United States, Docket No. 08-2793 (7th Cir., filed July 18, 2008). On May 10, 2010, Corbin filed the instant motion under § 2255. In this motion, he raises just one issue: because the Supreme Court ruled that a DUI conviction is not a crime of violence for purposes of the ACCA, he is entitled to be resentenced accordingly.
The Court ORDERS the Government to file a response to Corbin's motion within THIRTY (30) DAYS of the date of this Order. The Government shall, as part of its response, attach all relevant portions of the record. The Government shall address: (1) Does Begay apply retroactively in this situation? (2) Is Corbin's motion timely? (3) Did Corbin waive the right to file this challenge? and (4) Is Corbin entitled to relief?
IT IS SO ORDERED.
MICHAEL J. REAGAN United States District Judge
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