Opinion
CRIMINAL ACTION NO.: 3:10-CR-151-TBR-DW
10-28-2019
UNITED STATES OF AMERICA, PLAINTIFF v. RONTEZ P. COLBERT, DEFENDANT
CC: Rontez P. Colbert 13313-033 MANCHESTER L-8 FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 4000 MANCHESTER, KY 40962 PRO SE
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Pro Se Defendant Rontez P. Colbert's Motion to Appoint Counsel. [DN 131]. The United States has not responded and the deadline to do so has passed. This matter is ripe for adjudication. For the reasons stated herein: Defendant's Motion to Appoint Counsel, [DN 131], is DENIED.
LEGAL STANDARD AND DISCUSSION
On September 28, 2011, a jury convicted Defendant of possession of a firearm by a convicted felon. [DN 72]. He was designated as an armed career criminal and sentenced to 235 months in prison. [DN 87]. Defendant later appealed his conviction, but it was upheld by the Sixth Circuit Court of Appeals. [DN 100]. Between 2014 and 2016, Defendant filed two Motions to Vacate under 28 U.S.C. § 2255, a Motion to Alter Judgment, and a Motion for Reconsideration. [DN 102, 123, 126]. The Court denied each motion. [DN 119, 125, 128]. In August 2019, Defendant filed the Motion to Appoint Counsel currently before the Court. [DN 131].
In his Motion to Appoint Counsel, Defendant indicates that he plans to seek post-conviction relief in light of the Supreme Court's recent ruling in Rehaif v. United States, 139 S. Ct. 2191, 204 L. Ed. 2d 594 (2019). Once a judgment of conviction is entered, the Court has limited jurisdiction to amend and modify the final judgment. "A federal prisoner who seeks to make a collateral post-conviction motion challenging the legality or validity of his judgment of conviction and sentence ordinarily is required to make a timely motion for relief pursuant to 28 U.S.C. § 2255." United States v. Wooden, No. 1:03-CR-66, 2008 WL 5110790, at *1 (E.D. Tenn. Nov. 26, 2008) (citing United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001)). Once a defendant seeks post-conviction relief, a district court may appoint representation if the defendant is financially eligible and the interests of justice so require. 18 U.S.C. § 3006A(a)(2). However, there is no "right under the United States Constitution or any other federal law to have the Court appoint counsel at government expense to assist [a defendant] in preparing a 28 U.S.C. § 2255 motion that he hopes to file in the future." Wooden, 2008 WL 5110790, at *2; see also United States v. Pinkston, No. CR606-026, 2014 WL 12857426, at *1 (S.D. Ga. Feb. 18, 2014) (collecting cases) ("United States v. Harper, 2009 WL 2044820 at *1 (D. Neb. July 9, 2009) (motion for appointment of counsel is premature when filed prior to § 2255 motion); United States v. Wooden, 2008 WL 5110790 at *2 (E.D. Tenn. Nov. 26, 2008) (same); see United States v. Green, 2006 WL 3627650 at *2 (D. Neb. Dec. 12, 2006) (declining to appoint counsel to assist defendant in preparing and filing a § 2255 motion); United States v. Mercado, 2002 WL 31619032 at *3 (S.D.N.Y. Nov. 20, 2002) (court sought defendant's consent to recharacterize filing as § 2255 motion and denied his accompanying motion to appoint counsel as premature); cf. Hansen v. United States, 956 F.2d 245, 248 (11th Cir. 1992) ("[w]e hold that a request by a prisoner for access to the court files of his underlying criminal convictions is premature prior to the filing of a collateral attack on that conviction"); United States v. Newsome, 257 F. Supp. 201, 203 (D. Ga. 1966) (same)").
In this case, Defendant's Motion to Appoint Counsel is premature because he has not filed a motion seeking post-conviction relief. Therefore, the Court DENIES Defendant's Motion to Appoint Counsel without prejudice.
For the reasons stated herein, IT IS HEREBY ORDERED: Defendant's Motion to Appoint Counsel, [DN 131], is DENIED.
IT IS SO ORDERED.
/s/
Thomas B. Russell, Senior Judge
United States District Court
October 28, 2019 CC: Rontez P. Colbert
13313-033
MANCHESTER
L-8
FEDERAL CORRECTIONAL
INSTITUTION
Inmate Mail/Parcels
P.O. BOX 4000
MANCHESTER, KY 40962
PRO SE