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Short v. United States

United States District Court, C.D. Illinois, Urbana Division

June 5, 2017

CLINTON J. SHORT, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          ORDER

          SARA DARROW, UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner Clinton Short's Motion to Vacate, Set Aside, or Correct Sentence, ECF No. 1, his Motion for Leave to Proceed In Forma Pauperis, ECF No. 7, and his Motion to Request Counsel, ECF No. 9. For the following reasons, the Motion to Vacate, Set Aside, or Correct Sentence and the Motion to Request Counsel, ECF No. 9, are DENIED. Short's Motion for Leave to Proceed In Forma Pauperis, ECF No. 7, is MOOT.

         BACKGROUND

         Short entered an open guilty plea to possession of a firearm by a felon, 18 U.S.C. §§ 922(g) and 924(a)(2), on January 13, 2010.[1] The Presentence Investigation Report (“PSR”) placed his total offense level, including enhancements and downward adjustments, at 25, and his criminal history in category VI, PSR ¶ 79, Cr. ECF No. 17, putting the guideline range for his offense at 110 to 120 months. On May 10, 2010, the trial court sentenced Short to 120 months of incarceration. Judgment, Cr. ECF No. 19. Short did not appeal his conviction or sentence. See Mot. Vacate, Set Aside, or Correct Sentence 3, ECF No. 1. He filed the present § 2255 petition on October 31, 2016.

         Short argues, as basis for his motion, that (1) he is actually innocent, (2) the United States breached a plea agreement with him and (3) his counsel failed to file an appeal on his behalf. Id. at 6-7. The United States (“the Government”) argues that Short's motion is procedurally barred due to untimeliness, and that his claims are not otherwise sufficient to merit relief. Gov't Resp. 2, ECF No. 11.

         DISCUSSION

         I. Short's Request to Appoint Counsel

         Although Short has no absolute right to counsel in his civil case, he asks the Court to exercise its discretion to appoint counsel for him. See Merritt v. Faulkner, 697 F.2d 761, 763 (7th Cir. 1983). After considering the factors set forth in Merrit, the Court concludes that appointment of counsel is not warranted in this action at this time. Short provides the Court with what he claims is proof of his attempts to retain private counsel (an unpostmarked letter to several different pro bono attorneys), Mot. Request Counsel Ex. 1 at 2, ECF No. 9-1, but he does not allege any physical or mental disability which might preclude him from adequately investigating the facts giving rise to his Motion. Merritt, 697 F.2d at 765. Furthermore, Short acknowledges that he “understand[s] [the] issues” in his case, and there is nothing before the Court to suggest that he is not capable of adequately presenting his case. Mot. Request Counsel Ex. 1 at 1. The legal issues raised are not unduly complex, and there is an abundance of accessible case law. Accordingly, Short's Motion to Request Counsel is denied.

         II. Timeliness of Petition

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the procedure by which a federal prisoner may file a collateral motion challenging his criminal sentence. 28 U.S.C. § 2255(a). 28 U.S.C. § 2255 permits a prisoner incarcerated pursuant to an Act of Congress to seek that his sentence be vacated, set aside, or corrected if “the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” Id. AEDPA established a one year time period in which a federal prisoner may file a federal habeas petition, running from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...

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