Asmodeo v. United States

Background

John Asmodeo pleaded guilty to sexual exploitation of a minor under 18 U.S.C. § 2251. The court sentenced him to 180 months in prison followed by ten years of supervised release. His conviction and sentence were affirmed on appeal, and the Supreme Court denied review.

On October 6, 2020, Asmodeo submitted a request for additional time to file a motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel, or for appointment of counsel to prepare and file that motion. He did not file a formal § 2255 motion, but his submission listed grounds for relief. The court also noted that he had not signed the submission as required by Federal Rule of Civil Procedure 11(a).

Motion under Section 2255

The court construed Asmodeo’s submission as a motion under § 2255 because he sought to challenge the legality of his conviction and sentence and identified grounds for relief. A § 2255 motion is a federal prisoner’s procedure for seeking relief from a conviction or sentence on specified legal grounds.

Because Asmodeo had one opportunity for a full adjudication of his claims, the court granted him leave to file an amended § 2255 motion. The amended motion had to state all grounds for relief and the facts supporting those grounds. The court directed him to file it by December 7, 2020, and stated that he must sign it. If he did not respond, the submission would remain designated as a § 2255 motion, and the court would direct the United States Attorney’s Office to file an answer or another response. No government answer was required at that time.

Appointment of counsel

The court explained that appointment of counsel in a post-conviction proceeding is discretionary and may be ordered when the interests of justice require it. Applying the factors used to evaluate such requests, including whether the claims appear substantial, the court found that appointment of counsel was not warranted at that time.

The court therefore denied Asmodeo’s request for counsel under 18 U.S.C. § 3006A without prejudice to renewal at a later date.

Other rulings

The court concluded that Asmodeo had not made a substantial showing that a constitutional right had been denied, so it would not issue a certificate of appealability. It also certified that an appeal would not be taken in good faith and denied permission to appeal without paying the filing fees.

Disposition

The court construed the submission as a § 2255 motion, granted leave to amend by December 7, 2020, and denied the request for appointed counsel without prejudice to renewal. The court did not decide the merits of Asmodeo’s underlying challenges to his conviction or sentence.