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Lopez v. Merlak

United States District Court, N.D. Ohio, Eastern Division

February 12, 2018

BALDOMERO LOPEZ, Petitioner,
v.
STEVEN MERLAK, Warden, Respondent.

          JUDGE JAMES S. GWIN

          MEMORANDUM AND ORDER

          David A. Ruiz United States Magistrate Judge

         Baldomero Lopez has filed a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. The petition is before the magistrate judge pursuant to Local Rule 72.2. The petitioner is in the custody of the Federal Correctional Institution Elkton pursuant to journal entry of sentence in the case of United States v. Lopez, Case No. 7:04CR10 (M.D. Ga. Dec. 21, 2004). (R. 1, PageID #: 2.) Currently before the court are two motions filed by the pro se petitioner, a Motion to Supplement his habeas petition with additional argument in support (R. 12), and a Motion to Request the Assignment of Counsel (R. 13).

         The underlying petition stems from Lopez's 2004 convictions for possession with the intent to distribute (1) crack cocaine and (2) marijuana, in the Middle District of Georgia, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 841(b)(1)(D), pursuant to a guilty plea. (R. 1, PageID #: 2; R. 8, PageID #: 32-33.)

         In his petition, Lopez challenges his designation as a Career Offender under the United States Sentencing Guidelines, and raises the following arguments in support:

1. Lopez is authorized to challenge the erroneous career offender designation under 28 U.S.C. § 2241.
2. Descamps and Mathis both qualify as new statutory interpretations by the Supreme Court, which are retroactive.[1]
3. The Florida burglary statute in effect in 1988 does not qualify as a predicate offense for either ACCA or the Guidelines Career Offender sentence enhancements.
4. The district court's erroneous application of the Career Offender sentence enhancement in this case constitutes a fundamental error that resulted in a miscarriage of justice.

(R. 1, PageID #: 4, 5, 7, 9.) The respondent has filed a brief in opposition (R. 8), and Lopez has filed a reply (R. 11).

         Lopez has since filed a Motion to Supplement, which is unopposed. Lopez asserts that the motion “is solely intended to amend the Original Motion, ” but no new claims or amendments are asserted. The motion simply provides additional argument. See generally R. 12. The motion to supplement is GRANTED as unopposed.

         The motion for counsel is based on the petitioner's status as a layperson who is not a native speaker of English (although he can speak, read, and understand it). (R. 13.) Lopez asserts that he requires professional assistance, and would prefer counsel who speaks Spanish and English. See generally id.

         There is no constitutional or statutory right to counsel in habeas proceedings, except for those prisoners under a capital sentence. Morris v. Dormire, 217 F.3d 556, 558 (8th Cir.), cert. denied, 531 U.S. 984 (2000) (citing 28 U.S.C. § 2261). See also Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002), cert. denied, 538 U.S. 984 (2003) (citing McCleskey v. Zant, 499 U.S. 467, 495 (1987)); McKethan v. Mantello, 292 F.3d 119, 123 (2d Cir. 2002); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). Rather, “the right to appointment of counsel extends to the first appeal of right, and no further.” McCleskey, 499 U.S. at 495 (quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).)

         A district court may appoint counsel for a habeas petitioner when “the interests of justice so require.” Hoggard, 29 F.3d at 471 (citing 18 U.S.C.A. § 3006A(a)(2)). The decision whether to appoint counsel is left to the sound discretion of the district court. Morris, 217 F.3d at 558-559. The appointment of counsel is discretionary, when it has been determined that no evidentiary hearing is necessary. Hoggard, 29 F.3d at 471; Reese v. Fulcomer, 946 F.2d 247, 264 (3d ...


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