Perez v. United States

Background

Jonathan Perez filed an application asking the court to request pro bono counsel. The court treated the application as a motion for appointment of counsel under 18 U.S.C. § 3006A. Perez’s underlying case is a proceeding under 28 U.S.C. § 2255, which permits a federal prisoner to challenge a sentence in certain circumstances.

Perez alleged that his guilty plea and waiver of his right to appeal were not knowing and voluntary, that he received ineffective assistance from trial and appellate counsel, and that the Supreme Court’s decision in United States v. Davis made one of his convictions unconstitutional. Perez had been represented by court-appointed counsel in the underlying criminal case because of his indigent status. The court stated that it had no reason to believe his financial circumstances had changed while he was incarcerated and concluded that he was indigent.

Legal standard

The court explained that there is no constitutional right to counsel in a federal habeas proceeding. Under the Criminal Justice Act, counsel may be appointed for an eligible person seeking relief under § 2255 when the interests of justice require it.

The court applied the factors from Hodge v. Police Officers. First, the applicant must show indigence and that the claim appears likely to have substance. If those requirements are met, the court considers factors including the applicant’s ability to investigate facts and present the case, whether conflicting evidence will require cross-examination, the complexity of the legal issues, and whether counsel would be more likely to produce a fair result. The court also noted that counsel must be appointed for a qualified indigent person if a hearing becomes necessary.

Court’s analysis

The court said it could not yet determine whether Perez’s claims were likely to have substance because Perez had not filed his reply. It therefore also could not conclude that the remaining appointment factors favored counsel at that stage of the case. The court did not decide the merits of Perez’s § 2255 claims.

Disposition

The court denied Perez’s application for appointed counsel. The denial was without prejudice to a renewed application later in the case. The court stated that it would address appointment of counsel again if a hearing became necessary. It also certified that an appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal. The clerk was directed to mail Perez a copy of the order.