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McCoy v. Rios

August 20, 2010

RUSTY MCCOY, PETITIONER,
v.
RICARDO RIOS, RESPONDENT.



The opinion of the court was delivered by: Joe Billy Mcdade Senior United States District Judge

OPINION and ORDER

Before the Court are the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), the Motion for Leave to Proceed in forma pauperis (Doc. 2), and the Motion to Appoint Counsel (Doc. 3) filed by Petitioner on August 2, 2010. The Petition is DISMISSED, the Motion for Leave to Proceed in forma pauperis is DENIED AS MOOT, and the Motion to Appoint Counsel is DENIED.

I. Motion to Proceed in Forma Pauperis

Title 28 U.S.C. § 1915 provides that a civil proceeding may proceed without prepayment of the filing fee provided an inmate "submits an affidavit that includes a statement of all assets such prisoner possess that the person is unable to pay such fees or give security therefore." Petitioner asserts that he has no assets and that he is indigent. His prison trust fund account statement, however, reveals that as of July 21, 2010, Petitioner had a balance of $113.46. The statement also indicates that Petitioner is employed and receives wages every month ranging from $71.53 to $165.43. As such this Court finds that Petitioner is not indigent and that he can afford to pay the $5.00 filing fee associated with a § 2241 Petition. As will be explained below, however, no filing fee is required in this case.

II. Motion to Appoint Counsel

Civil litigants are not entitled to a court appointed attorney. Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). However, the Court may request an attorney to represent an indigent litigant. 28 U.S.C. §1915(e)(1). Prior to such a request, the litigant must show that he made a reasonable attempt to acquire counsel without Court intervention. Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). After a litigant has made such an attempt, the Court considers whether "given the difficulty of the case, d[oes] the plaintiff appear to be competent to try it himself, and, if not, would the presence of counsel [] [make] a different in the outcome?" Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).

In addition to the foregoing, the Court may appoint counsel in this 28 U.S.C. § 2241 petition if discovery is required and must appoint counsel if an evidentiary hearing is set. See Rules Governing Section 2254 Cases 6,8 (which apply to § 2241 Petitions, see Rule 1). And, counsel may be appointed if "the court determines that the interest of justice so require." 18 U.S.C. § 3006A.

Petitioner has made no attempt to secure counsel without Court intervention. For this reason alone, the motion is DENIED. In addition, Petitioner appears capable of pursuing his claims, has presented a reasonably coherent Petition, and counsel will not make a difference in the outcome of this matter. Moreover, no evidentiary hearing or discovery is required in this matter.

III. Habeas Petition

Rule 4 of the Rules governing habeas petitions provides: If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

On June 14, 2005, Petitioner pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). United States v. Rusty Eugene McCoy, 3:05-cr-5010, Doc. 15 (W.D.Mo). Judgment was entered on January 10, 2006 and Petitioner was sentenced to 180 months of incarceration (the statutory minimum) and 5 years of supervised release. Petitioner filed a notice of appeal on January 19, 2006. The judgment was affirmed by the Eighth Circuit Court of Appeals on February 5, 2007. In the appeal, Petitioner "challenge[d] one of the predicate offenses underlying his armed-career-criminal status, arguing that aiding and abetting felony theft of a vehicle in violation of Kansas law should not automatically be deemed a 'violent felony.'" Id. Doc. 38. A subsequent writ of certiorari was denied by the United States Supreme Court on November 1, 2007. Id. Doc. 41.

Petitioner filed a Motion pursuant to 28 U.S.C. § 2255 on October 1, 2008. Rusty Eugene McCoy v. United States, 3:08-cv-5104, Doc. 1 (W.D.Mo). In that Motion, Petitioner again argued that that aiding and abetting in the felony theft of a vehicle is not a violent felony. Petitioner also argued that his Fifteen year sentence was a breach of his plea agreement and that this counsel was ineffective for failing to attack his excessive sentence. The District Court denied the Motion. A certificate of appealability was not issued by either the District Court oo the Court of Appeals; and, a petition for a writ of certiorari was denied by the Supreme Court on May 6, 2010.

The Petition before this Court asserts that Petitioner is "actually innocent" of the crime for which he stands convicted based on the decision by the United States Supreme Court in Begay v. United States, 553 U.S. 137 (2008). In Begay, the Court limited the definition of "violent felony" contained in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), which mandates a minimum sentence of 15 years for a person who violates § 922(g) (felon in possession) and who has three prior convictions for a "violent felony or a serious drug offense." The Court held that for purposes of the statute, the violent felonies that are covered are crimes similar to those listed in the statute, namely, burglary, arson, extortion, or crimes involving explosives. Begay, 553 U.S. at 142. The Court reasoned, in part, that

The listed crimes all typically involve purposeful, 'violent,' and 'aggressive' conduct. That conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and aggressive manner are 'potentially more dangerous when firearms are involved.' And such crimes are ...


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