United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STALES MAGISTRATE JUDGE
Jeremiah Lane, an inmate at the Federal Correctional
Institution in Jesup, Georgia, filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence.
The petition is before the Court for initial review as
required by Rule 4 of the Rules Governing Section 2255
Proceedings for the United States District Courts. The Court
REPORTS and RECOMMENDS
Petitioner's motion for appointment of counsel be
DENIED, (doc. no. 2), Petitioner's
motion for an evidentiary hearing be DENIED
as MOOT, (doc. no. 3), the § 2255
motion be DISMISSED, and this civil action
February 8, 2006, the grand jury in the Southern District of
Georgia charged Petitioner and two co-defendants with one
count of conspiracy to rob a commercial business, one count
of robbery, seven counts of robbery of a commercial business,
and eight counts of using a firearm during a crime of
violence. United States v. Lane, CR 106-028, doc.
no. 1 (S.D. Ga. Feb. 8, 2006) (hereinafter “CR
106-028”). Represented by Edward John Flythe,
Petitioner pled guilty to the conspiracy, robbery, and
firearm charges in Counts One, Nine, and Seventeen on May 11,
2006. Id., doc. nos. 28, 31. In exchange for
Petitioner's guilty plea, the government agreed to
dismiss the remaining counts. Id., doc. no. 29, pp.
4. By pleading guilty, Petitioner admitted the factual basis
for his conviction. Id. at 6-8.
plea agreement included a broad appeal and collateral attack
waiver that stated in relevant part:
Understanding that 18 U.S.C. § 3742 provides for an
appeal by a defendant of the sentence under certain
circumstances, the defendant as a part of this agreement and
in consideration for the government's promises hereunder,
expressly waives any and all rights conferred by that statute
to appeal any sentence imposed that is within the statutory
maximums set out above. The defendant, as a part of this
agreement and in consideration for the government's
promises hereunder, also expressly waives any and all rights
to collateral post-conviction attack of the sentence imposed
or the voluntariness, providence, or factual basis of the
guilty plea entered pursuant to this agreement.
Id. at 5.
entry of the guilty plea, the United States Probation Office
prepared a Presentence Investigation Report
(“PSI”) which set Petitioner's Total Offense
Level at twenty-nine, Criminal History Category at I, and
Guidelines imprisonment range at eighty-seven to 108 months
as to Counts One and Nine, and 120 months consecutive as to
Count Seventeen. PSI ¶ 135. Judge Bowen sentenced
Petitioner to eighty-seven months imprisonment as to each of
Counts One and Nine to be served concurrently with each other
and 120 months imprisonment as to Count Seventeen to be
served consecutively with Counts One and Nine, for a total
term of 207 months imprisonment. CR 106-028, doc. no. 46.
Judgment was entered on February 20, 2007. Id.
Petitioner is Not Entitled to Court-Appointed
Petitioner's request for appointment of counsel, there is
no automatic constitutional right to counsel in habeas
proceedings. See Pennsylvania v. Finley, 481 U.S.
551, 555 (1987); United States v. Webb, 565 F.3d
789, 794 (11th Cir. 2009) (citing Barbour v. Haley,
471 F.3d 1222, 1227 (11th Cir. 2006)); Hooks v.
Wainwright, 775 F.2d 1433, 1438 (11th Cir. 1985). Under
18 U.S.C. § 3006A(a)(2)(B), the Court may appoint
counsel for an indigent litigant seeking relief under 28
U.S.C. § 2255, but such requests are discretionary when
“due process or the ‘interests of
justice'” so require. Hooks, 775 F.2d at
1438; Norris v. Wainwright, 588 F.2d 130, 133 (5th
Cir. 1979); see also 28 U.S.C. §
2255(g) and Rule 8(c) of the Rules Governing Section 2255
Cases in the United States District Courts (authorizing
appointment of counsel pursuant to 18 U.S.C. § 3006A if
evidentiary hearing warranted). Moreover, appointment of
counsel is “a privilege that is justified only by
exceptional circumstances[.]” McCall v. Cook,
495 Fed.Appx. 29, 31 (11th Cir. 2012). In sum,
“[e]xcept in those rare cases where under the
circumstances the fundamental fairness component of due
process requires appointment of counsel, ” there is no
federal constitutional right to appointed counsel. Donald E.
Wilkes, Jr., Federal Postconviction Remedies and Relief
Handbook § 2:2, at 217 (2017 ed.) (citations
Court does not find any exceptional circumstances justifying
the appointment of counsel. See McCall, 495
Fed.Appx. at 31. Petitioner has had no problem communicating
with the Court, as evidenced by his properly filing the
present § 2255 motion, brief in support, and motions for
appointment of counsel and an evidentiary hearing. Moreover,
as explained below, his case is due to be dismissed because
it is untimely and, at any rate, does not fall within the
parameters of Dimaya. Therefore, the motion for
appointment of counsel should be DENIED.
(Doc. no. 2.)
The § 2255 Motion Should Be Dismissed as Untimely and
focus of Petitioner's current motion is the consecutive
sentence of 120 months imposed for the firearms charge under
§ 924(c). To understand Petitioner's contention, one
must first understand the origins of Petitioner's
sentence under § 924(c). This code section establishes
certain minimum sentences for “any person who, during
and in relation to any crime of violence or drug trafficking
crime[, ] . . . uses or carries a ...