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Starkes v. United States

United States District Court, S.D. New York

January 15, 2020

QUENTIN STARKES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE.

         Movant Quentin Starkes pleaded guilty to: (1) one count of racketeering conspiracy, in violation of 18 U.S.C. § 1962, and he was sentenced to 100 months in prison, followed by three years of post-release supervision; and (2) one count of narcotics conspiracy, in violation of 18 U.S.C. § 846, and he was sentenced to 60 months of incarceration to run concurrently, followed by five years of post-release supervision to run concurrently. See United States v. Starkes, ECF 1:17-CR-0610, 494 (LGS) (S.D.N.Y. Oct. 31, 2019). Starkes did not appeal.

         On January 9, 2020, Starkes filed a letter stating that, “do [sic] to ineffective counsel for failure to request a compenty [sic] evaluation and neglecting to file an appeal, ” [he] “request[s] a hearing for 28 U.S.C. § 2255.” (ECF No. 1.) Starkes did not file a § 2255 motion.

         DISCUSSION

         A. Motion for Relief Under 28 U.S.C. § 2255

         Starkes's letter may be construed as a motion for relief under 28 U.S.C. § 2255 because he seeks to challenge the legality of his conviction and sentence, and he sets forth, albeit briefly, the bases for an application for § 2255 relief. See Jiminian v. Nash, 245 F.3d 144, 146-47 (2d Cir. 2001) (Section 2255 “is generally the proper vehicle for a federal prisoner's challenge to his conviction and sentence”).

         If Starkes does not want to pursue relief under § 2255, he may notify the Court in writing within sixty days that he wishes to withdraw the application. See Castro v. United States, 540 U.S. 375, 383 (2003); Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998) (per curiam). Starkes will have one opportunity within the limitations period for a full adjudication of his claims. For that reason, the Court grants Starkes leave to file an amended § 2255 motion that sets forth all his grounds for relief and all facts in support of those grounds.

         If Starkes does not respond to this order within the time allowed, the letter will remain designated as a motion under 28 U.S.C. § 2255.[1]

         B. Appointment of Counsel

         In the criminal context, the right to appointed counsel “extends to the first appeal of right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Courts have no obligation “to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief.” Johnson v. Avery, 393 U.S. 483, 488 (1969). Rather, “the initial burden of presenting a claim to post-conviction relief usually rests upon the indigent prisoner himself with such help as he can obtain within the prison walls or the prison system.” Id.

         District courts do, however, have discretion to appoint counsel. Section 2255(g) expressly provides that a district court “may appoint counsel, ” and that appointment of counsel is governed by 18 U.S.C. § 3006A. Section 3006A(a)(2) provides that representation may be provided “for any financially eligible person” when “the interests of justice so require.”

         In determining whether the “interests of justice” require the appointment of counsel, district courts look to Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1985), a Second Circuit case articulating the factors that courts should consider in determining whether to appoint an attorney to represent an indigent civil litigant in an analogous context. See, e.g., Toron v. United States, 281 F.Supp.2d 591, 593 (E.D.N.Y. 2003); Harrison v. United States, Nos. 06-CV-261S & 03-CR-0114-001S, 2006 WL 1867929, at *1 (W.D.N.Y. June 30, 2006). Hodge dictates that “[i]n deciding whether to appoint counsel, . . . the district judge should first determine whether the indigent's position seems likely to be of substance.” Hodge, 802 F.2d at 61. “If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.” Id. at 61-62.

         The Court has considered these factors and finds that appointment of counsel is warranted at this time. Although Starkes does not have a right under the United States Constitution or any other federal law to the appointment of counsel at government expense to assist him in preparing a § 2255 motion, the Court finds that because Starkes writes that his counsel failed to request a competency evaluation, it is in the interests of justice to require the appointment of counsel.

         Accordingly, the Court appoints counsel from the Criminal Justice Act Habeas Panel, under 18 U.S.C. § ...


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