United States District Court, S.D. New York
G. SCHOFIELD, UNITED STATES DISTRICT JUDGE.
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.
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 for Relief Under 28 U.S.C. § 2255
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
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.
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.
Appointment of Counsel
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.
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.”
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.
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.
the Court appoints counsel from the Criminal Justice Act
Habeas Panel, under 18 U.S.C. § ...