United States District Court, N.D. Ohio, Eastern Division
JAMES S. GWIN
MEMORANDUM AND ORDER
A. Ruiz United States Magistrate Judge
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).
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.)
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
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
(R. 1, PageID #: 4, 5, 7, 9.) The respondent has filed a
brief in opposition (R. 8), and Lopez has filed a reply (R.
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.
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
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
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