Genovese v. United States

Background

Nicholas J. Genovese, proceeding without a lawyer, filed a motion under 28 U.S.C. § 2255 to challenge his sentence. On February 3, 2022, the Court determined that the motion should not be summarily dismissed as without merit and ordered the United States to answer or otherwise respond. Genovese then moved for appointment of counsel. The Court treated that request as one under 18 U.S.C. § 3006A(a)(2)(B), part of the Criminal Justice Act.

Legal standard

The Criminal Justice Act permits a court to appoint counsel for a financially eligible person seeking relief under § 2255 when the interests of justice require it. The Court applied factors used for requests for appointed counsel by indigent civil litigants. It first considered financial eligibility and whether Genovese’s position appeared likely to have substance, meaning some chance of success. It could then consider matters such as the person’s ability to investigate facts, present the case, and address complex legal issues.

The Court found Genovese indigent based on his affidavit showing that he could not pay for legal representation and his prior permission to proceed without paying fees in his criminal appeal. The Court also found that a split in legal authority about when the limitations period began created sufficient uncertainty to justify appointing counsel.

Ruling and effect

The Court granted the motion for counsel under 18 U.S.C. § 3006A. It directed the Clerk of Court to send the order to the Criminal Justice Act Clerk, who was directed to assign counsel for the limited purpose of determining whether Genovese’s motion was timely and whether it was barred by a waiver of his right to bring a later challenge to his sentence. The Clerk was also directed to mail Genovese a copy of the order and terminate ECF No. 5.

This order did not decide whether the § 2255 motion was timely, whether Genovese had waived a collateral challenge, or whether his underlying sentence challenge should succeed.