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United States of America v. James Mckenzie

December 27, 2012

UNITED STATES OF AMERICA
v.
JAMES MCKENZIE



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Virginia M. Kendall than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Petitioner James McKenzie ("McKenzie") brings a Renewed Motion to Proceed In Forma Pauperis without the full prepayment of filing fees and a Renewed and Revised Motion for Appointment of Counsel. McKenzie also moves for an extension of time to reply to the government's response brief, and seeks default judgment against the government for failing to timely respond to his petition. For the reasons stated herein, McKenzie's Renewed Motions [13] and Motion for Default Judgment [15] are denied. McKenzie's Motion for an Extension of Time to reply [12] is granted.

O[ For further details see text below.] Docketing to mail notices.

Background

On July 2, 2012, Petitioner James McKenzie filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. On the same day, McKenzie filed a Motion to Proceed In Forma Pauperis and a Motion for the Appointment of Counsel. On July 27, 2012, this Court denied McKenzie's Motion to Proceed In Forma Pauperis as moot because § 2255 proceedings do not require the filing of fees. The Court also denied McKenzie's Motion for Appointment of Counsel, finding "McKenzie has demonstrated that he is capable of representing himself in pursuing his § 2255 motion."

On October 9, 2012, McKenzie filed a Memorandum of points and authorities in support of 28 U.S.C. § 2255 relief. The Court set a briefing schedule shortly thereafter, allowing the government an opportunity to respond to McKenzie's Memorandum by November 9, 2012, and McKenzie the opportunity to reply to the government's response by December 7, 2012. Instead of filing a reply, however, McKenzie has filed a Renewed and Revised Motion for Appointment of Counsel and a Renewed Motion to Proceed In Forma Pauperis. McKenzie also moves unopposed for an extension of time to file his reply brief.

This Court denied McKenzie's first Motion for Appointment of Counsel after finding McKenzie demonstrated an ability to represent himself in this proceeding. This determination was based, in part, on the fact that McKenzie was able to prepare a detailed Memorandum of Points and Authority in support of his claims. The Court also found that appointment of counsel was not warranted under Rules 6(a) & 8(c) of the Rules Governing Section 2255 Cases because the Court was unable to conclude from the filings that further discovery or an evidentiary hearing would be required.

In his Renewed Motion, McKenzie asks the Court to revisit this determination based on changed circumstances that have caused him to "los[e] his ability to represent himself in this matter...." (Pet. Mot. ¶ 13.) McKenzie states in his Renewed Motion that he did not actually prepare or perform research for his original § 2255 Motion and Memorandum. (Id. ¶ 1.) According to McKenzie, the original memorandum was prepared by a fellow federal prisoner who had served several years in prison, completed a paralegal course, litigated similar issues in his own case, and helped other prisoners in their litigation efforts. (Id. ¶ 2.) McKenzie states that this "seasoned federal writ writer" has since been transferred to Florida, leaving McKenzie "high‐and‐ dry" and unable to advance his case further without the assistance of a trained attorney. (Id. ¶¶ 2--3, 5.) McKenzie also states that the drafter of the motions currently before this Court-McKenzie's Renewed Motion to Proceed In Forma Pauperis, Motion for an Extension of Time to File a Reply to Government's Response, and Renewed and Revised Motion for Appointment of Counsel-is "doing McKenzie a favor" and does not have the time to provide McKenzie meaningful assistance in this case.

Legal Standard

The decision of whether to appoint counsel in a § 2255 proceeding is left to the sound discretion of this Court. See Mitchell v. U.S., 359 F.2d 833, 835 (7th Cir. 1966). For a petitioner whose case does not involve the death penalty, there is no statutory or constitutional entitlement to the appointment of counsel in a § 2255 proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); 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). However, the Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B), authorizes a district court to appoint counsel for a petitioner seeking habeas relief under 28 U.S.C. § 2255 where

(1) the petitioner is financially eligible, and (2) appointment is necessary for effective utilization of discovery procedures, an evidentiary hearing is required, or if the "interests of justice so require." See 18 U.S.C. § 3006A(a)(2); Rules 6(a) & 8(c), Rules Governing Section 2255 Cases in the United States District Courts. Counsel also may be appointed in Section 2255 proceedings pursuant to 28 U.S.C. § 1915(e), which requires (1) a threshold inquiry into the indigent's efforts to secure counsel, and (2) a determination of whether, given the difficulty of the case, the petitioner appears competent to litigate the case himself. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (citing Farmer v. Haas, 990 F. 2d 319, 321--22 (7th Cir. 1993)); Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992).

Discussion

A petitioner seeking appointment of counsel under 18 U.S.C. § 3006A must demonstrate financial eligibility. See 18 U.S.C. § 3006A(a)(2). Although McKenzie attached a financial affidavit to his original Motion to Proceed In Forma Pauperis, which he filed in July of 2012, he has not submitted a new financial affidavit or any other documentation related to his financial status with his Renewed Motions. Without an up‐to‐date financial affidavit and certificate verifying the funds and average monthly deposits in McKenzie's bank account over the past six ...


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