United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
Randall Allen Hammack, a federal prisoner incarcerated at
FCI-Greenville/USP-Marion, brings this habeas corpus action
pursuant to 28 U.S.C. § 2241 to challenge the
constitutionality of his confinement. He asserts that in
light of Rehaif v. United States, __ U.S. __, 139
S.Ct. 2191 (June 21, 2019), his sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and 18 U.S.C. § 924(a)(2) should be vacated.
case is now before the Court for a preliminary review of the
Petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in United States District Courts. Rule 4 provides
that upon preliminary consideration by the district court
judge, “[i]f 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
was convicted in the Western District of Missouri (No.
6:11-cr-03090-DGK-1)) and sentenced on December 14, 2012 to
110 months. On February 19, 2016, his § 2255 motion was
denied (No. 15-3442-CV-S-RK-P (W.D. Mo). He contends the
Government failed to allege or prove that he knew that he
belonged to the category of persons (those with a prior
felony conviction) who were prohibited from possessing a
firearm at the time he possessed a firearm.
Rehaif, the Supreme Court held that:
[I]n a prosecution under 18 U.S.C. § 922(g) and §
924(a)(2), the Government must prove both that the defendant
knew he possessed a firearm and that he knew he belonged to
the relevant category of persons barred from possessing a
firearm. We express no view, however, about what precisely
the Government must prove to establish a defendant's
knowledge of status in respect to other § 922(g)
provisions not at issue here.
Rehaif v. United States, 139 S.Ct. 2191, 2200 (2019)
(defendant's conviction for illegal possession of firearm
and ammunition was based on his status of being illegally or
unlawfully in the United States; reversing/remanding because
the Government had not been required to prove at trial that
defendant knew he was unlawfully in the country).
the limited record and the still-developing application of
Rehaif, it is not plainly apparent that Hammack is
not entitled to habeas relief. Accordingly, without
commenting on the merits of Hammack's claims, the Court
concludes that the Petition survives preliminary review under
Rule 4 and Rule 1(b) of the Rules Governing Section 2254
Cases in United States District Courts, and a response shall
for Recruitment of Counsel
also filed a letter addressed to the Clerk of Court
requesting appointment of counsel, which the Court construes
as a motion for recruitment of counsel. (Doc. 2). Civil
litigants do not have a constitutional or statutory right to
counsel. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir.
2007). Under 28 U.S.C. § 1915(e)(1), the Court has
discretion to recruit counsel to represent indigent litigants
in appropriate cases. Johnson v. Doughty, 433 F.3d
1001, 1006 (7th Cir. 2006). When deciding whether to recruit
counsel for an indigent litigant, the Court must consider (1)
whether the indigent litigant has made reasonable attempts to
secure counsel on his own, and, if so, (2) whether the
difficulty of the case exceeds the litigant's capacity as
a layperson to coherently present it. Navejar v.
Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing
Pruitt, 503 F.3d at 655). Hammack discloses no
efforts to locate counsel on his own. Therefore, his request
for recruitment of counsel is premature and his Motion (Doc.
2) is DENIED without prejudice.
may renew his request for counsel at any time during the
pending action, after first attempting to locate counsel on
his own. If Hammack does renew his request, he should give
the Court rejection letters from at least three attorneys
with regard to a request for representation in this case to
prove that he has made reasonable efforts to obtain counsel
on his own.
IS HEREBY ORDERED that Respondent shall answer or
otherwise plead within thirty days of the date this order is
entered (on or before December 2, 2019). This preliminary
order to respond does not, of course, preclude the Government
from raising any objection or defense it may wish to present.
Service upon the United States Attorney for the Southern
District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois, shall constitute sufficient service.
IS FURTHER ORDERED that Hammack's Motion for
Recruitment of Counsel (Doc. 2) is DENIED
and his Motion ...