USA v. Simpson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 18-cv-02284-PAB
(Criminal Case No. 14-cr-00265-PAB)
UNITED STATES OF AMERICA,
v.
1. MICHAEL EUGENE SIMPSON,
Movant.
ORDER
Movant Michael Eugene Simpson has filed a Writ of Habeas Corpus to Vacate,
Set Aside, or Correct Sentence Pursuant to Title 28 USC § 2255 [Docket No. 291], a
Motion for Evidentiary Hearing Pursuant to Title 28 U.S.C. § 2255 [Docket No. 290], and
a Motion for Appointment of Counsel Pursuant to U.S.C. § 3006(A)(2)(B) [Docket No.
287].
First, decisions regarding appointment of counsel in habeas corpus proceedings
generally are “left to the court’s discretion.” Swazo v. Wyo. Dep’t of Corr. State
Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). “[T]here is a right to counsel in
a habeas case when the district court determines that an evidentiary hearing is
required.” Id. In particular, Rule 8(c) of the Rules Governing Section 2254 Cases in the
United States District Courts provides that “[i]f an evidentiary hearing is warranted, the
judge must appoint an attorney to represent a petitioner who qualifies to have counsel
appointed under 18 U.S.C. § 3006A.” Furthermore, Rule 6(a) provides that, “[i]f
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necessary for effective discovery, the judge must appoint an attorney for a petitioner
who qualifies to have counsel appointed under 18 U.S.C. § 3006A.”
The Court has made no determination regarding whether an evidentiary hearing
is warranted in this action. In addition, no discovery has been authorized by the Court.
The relevant issue before the Court is the 28 U.S.C. § 2255 Motion. There is no
indication that Applicant will be unable to respond to the United States Attorney’s
Answer when it is filed. The Motion to Appoint Counsel, Docket No. 287, will be denied
as premature.
Second, based on the above findings, the Motion for Evidentiary Hearing, Docket
No. 290, also will be denied as premature.
Finally, after preliminary consideration of Movant’s 28 U.S.C. § 2255 Motion,
Docket No. 291, the Court finds a response by the United States Attorney is
appropriate. Accordingly, it is
ORDERED that the United States Attorney on or before October 10, 2018, shall
file an answer or other pleading directed to the Motion pursuant to Rule 4 of the Rules
Governing Section 2255 Proceedings. It is further
ORDERED that the Motion for Evidentiary Hearing Pursuant to Title 28 U.S.C.
§ 2255, Docket No. 290, and the Motion for Appointment of Counsel Pursuant to U.S.C.
§ 3006(A)(2)(B), Docket No. 287, are denied as premature.
Dated: September 10, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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