U.S. v. Arcoren

• Decision Date: 07 July 2009
• Docket Number: No. CR 05-30129.,CR 05-30129.
• Citation: 633 F.Supp.2d 752
• Parties: UNITED STATES of America, Plaintiff, v. Joseph F. ARCOREN, Defendant.
• Court: U.S. District Court — District of South Dakota

633 F.Supp.2d 752

UNITED STATES of America, Plaintiff, v. Joseph F. ARCOREN, Defendant.

No. CR 05-30129.

United States District Court, D. South Dakota, Central Division.

July 7, 2009.

COPYRIGHT MATERIAL OMITTED

Randolph J. Seiler, U.S. Attorney's Office, Pierre, SD, for Plaintiff.

OPINION AND ORDER

CHARLES B. KORNMANN, District Judge.

Defendant pleaded guilty to sexual abuse of a minor and was sentenced on February 12, 2007, to 87 months custody. Defendant did not appeal to the United States Court of Appeals for the Eighth Circuit. He filed a motion to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. Following initial consideration of the motion, as required by Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, I directed the government to file an answer addressing only whether counsel was ineffective in failing to file a notice of appeal as allegedly directed and whether any relief is barred by the statute of limitations.

This matter was referred to U.S. Magistrate Judge Mark A. Moreno and the magistrate judge submitted his report and recommendation to the Court on February 18, 2008, Doc. 90. The report and recommendation was served on the defendant as required by 28 U.S.C. § 636. Defendant timely filed objections. The Court has conducted a de novo review of the file. I am, of course, very familiar with all aspects of this case since I was the "trial judge" from start to finish. The magistrate correctly sets forth the history of this case and the motion itself.

Defendant objects to the magistrate's recommended finding that defendant failed to timely contact counsel requesting that she file a notice of appeal on his behalf and that he failed to show reasonable diligence in discovering counsel's failure to file a notice of appeal on his behalf. Defendant contends that he is entitled to an evidentiary hearing wherein he could show that his mother attempted to call counsel on his behalf.

Even if the defendant could establish at an evidentiary hearing that he and his mother tried to contact counsel to file an appeal and determine the status of an appeal, defendant is not entitled to relief He failed to establish that "extraordinary circumstances beyond [defendant's] control prevent[ed] the timely filing of a petition." Earl v. Fabian, 556 F.3d 717, 722 (8th Cir.2009). Defendant did not offer any evidence to refute the magistrate's conclusion that, when he allegedly could not reach counsel, he failed to contact the Clerk of Courts to determine whether an appeal had been filed on his behalf. The magistrate concluded that defendant was not diligent because he failed to file his § 2255 motion to protect himself when he received no response from counsel to claimed telephone calls and letters. Defendant failed to show that "he pursued his rights with the requisite diligence." Id. at 724.

In addition, it is noteworthy that Mr. Arcoren was specifically told by me at the conclusion of his sentence hearing that the district Clerk of Courts office would prepare and file, if requested to do so, a notice of appeal on his behalf. He made no such request. He did not need an attorney to file a timely appeal.

I adopt the magistrate's findings that defendant did not establish "diligent pursuit" of his rights when he failed to file his § 2255 motion until 18 months after his conviction became final.

Now, therefore,

IT IS ORDERED:

1. The report and recommendation of the U.S. Magistrate Judge, Doc. 90, shall be and is hereby adopted as the findings of fact and conclusions of law herein.

2. The defendant's objections, Doc. 92, are overruled.

3. The motion to vacate, set aside, or correct defendant's conviction and sentence, Doc. 75, is denied.

IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable issue with respect to the Court's order denying petitioner's motion to vacate, set aside, or correct sentence. No certificate of appealability will be granted. 28 U.S.C. § 2253(c). This in no way hampers the petitioner's ability to request issuance of the certificate by a circuit judge pursuant to Fed. R. App. P. 22.

REPORT AND RECOMMENDATIONS FOR DISPOSITION OF MOTION UNDER TO VACATE, SET ASIDE OR CORRECT SENTENCE

MARK A. MORENO, United States Magistrate Judge.

The above-captioned 28 U.S.C. § 2255 case was referred to this Court, pursuant to 28 U.S.C. § 636(b), for the purpose of conducting any necessary hearings, including evidentiary hearings, and submitting proposed findings of fact and recommendations for disposition thereof.¹ Having carefully reviewed and considered all of the records on file and being fully advised in the premises, the Court does now make and propose the following findings, report and recommendations for disposition of the case.

I.

Defendant, Joseph F. Arcoren (Arcoren), pled guilty to sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a) and 2246(2). On February 12, 2007, he was sentenced to 87 months in prison. The judgment was filed the following day, February 13, 2007, and Arcoren did not appeal from the same.

Instead, on September 4, 2008, he filed a motion to vacate, set aside or correct sentence, under 28 U.S.C. § 2255, as well as a supporting memorandum and affidavit.² After conducting an initial consideration of the motion, the District Court dismissed most of Arcoren's claims, but directed that Plaintiff, United States of America (Government), file an answer and brief addressing whether the § 2255 motion is barred by the statute of limitations and whether trial counsel was ineffective in failing to file a notice of appeal. The Court, at the same time, referred the case to this Court to handle on a report and recommendation basis.

The Government complied with the District Court's order, filing an answer, containing a motion to dismiss for failure to state a cognizable claim under § 2255, a supporting memorandum and an affidavit signed by trial counsel. Arcoren did not reply to any of the Government's submissions.

II.

Although Arcoren has not filed a motion seeking to have counsel appointed for him, in light of the District Court's referral order, the Court must nonetheless decide whether he is entitled to the appointment of counsel in this instance.

At the outset, it must be observed that there is neither a constitutional nor a statutory right to counsel in § 2255 proceedings; rather, the appointment of counsel is committed to the discretion of the reviewing court. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Baker v. United States, 334 F.2d 444, 447-48 (8th Cir.1964). The court, however, may appoint counsel in a § 2255 case if the interests of justice so require. 18 U.S.C. § 3006A(a)(2)(B); 28 U.S.C. § 2255(g). If the court conducts an evidentiary hearing the interests of justice require the appointment of counsel. Rule 8(c) of the Rules Governing § 2255 Proceedings for the United States District Courts (" § 2255 Rules") ("If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A.") (emphasis added); Green v. United States, 262 F.3d 715, 717-19 (8th Cir.2001). If no evidentiary hearing is necessary, the appointment of counsel is discretionary. Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir.1994): United States v. One Star, 575 F.Supp.2d 1104, 1111 (D.S.D.2008).

In exercising its discretion, a court should first determine whether the § 2255 movant has presented a non-frivolous claim. Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.), cert. denied, 513 U.S. 857, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994); Gomez v. United States, 100 F.Supp.2d 1038, 1042 (D.S.D.2000). If the movant has presented only claims that are frivolous or clearly without merit, the court should dismiss the case on the merits without appointing counsel. Rule 4 of the § 2255 Rules. If the movant has presented a non-frivolous claim, the court should then determine whether, given the particular circumstances of the case, the appointment of counsel would benefit the movant and the court to such an extent that "the interests of justice so require it." § 3006A(a)(2)(B); Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir.1995). In determining whether the appointment of counsel is necessary for a movant seeking relief with a non-frivolous claim, the court should consider the legal and factual complexity of the case, the movant's ability to investigate and present the claim and any other relevant factors. McCall v. Benson, 114 F.3d 754, 756 (8th Cir.1997); United States v. Hill, 171 F.Supp.2d 1032, 1035-36 (D.S.D.2001).

Applying these factors, the Court concludes that the interests of justice do not require the appointment of counsel here. It is evident from reading Arcoren's § 2255 motion and the supporting documents that he understands the issues involved and is capable of articulating them. Yellow Hawk v. United States, 314 F.Supp.2d 921, 927 (D.S.D.2004). Moreover, his motion and other filings are sufficiently clear to enable the Court to determine whether § 2255 relief is warranted. See Nachtigall, 48 F.3d at 1082; Hill, 171 F.Supp.2d at 1036. And, Arcoren's claims can be resolved on the basis of the record now before the Court. See Hoggard, 29 F.3d at 472; Hill, 171 F.Supp.2d at 1036. Finally, the unlikelihood of Arcoren overcoming the procedural hurdles he faces and prevailing on his motion, militates against, and undercuts any need for, the appointment of counsel. See United States v. Waite, 382 F.Supp.2d 1, 2-3 & n. 1 (D.D.C.2005). For these reasons, the Court finds it unnecessary to appoint counsel for Arcoren and declines to do so.

III.

The District Court, in its referral order, instructed this Court to determine whether an evidentiary hearing was required on Arcoren's § 2255 motion. Arcoren has not requested an evidentiary hearing, but the Court...