United States District Court, S.D. Georgia, Augusta Division
31, 2018, Defendant Jacob Lee Caldwell pled guilty to one
count of possession of a firearm in furtherance of a drug
trafficking crime, a violation of 18 U.S.C. § 924(c). He
was sentenced to 60 months imprisonment. Defendant did not
appeal his conviction or sentence.
September 20, 2019, Defendant filed a motion to appoint
counsel to help him seek relief pursuant to a new rule of
constitutional law announced in United States v.
Davis, __ U.S. __, 139 S.Ct. 2319 (Jun. 24, 2019).
Specifically, in Davis, the United States Supreme
Court found that the "residual clause" of 18 U.S.C.
§ 924(c) is unconstitutionally vague.
order to attack the legality of his sentence, which is what
Defendant is trying to do, Defendant must petition for habeas
corpus relief under 28 U.S.C. § 2255 by filing a motion
to vacate, set aside or correct his sentence. Here,
Defendant's motion to appoint counsel does not reference
§ 2255 in any way. Nevertheless, this Court intends to
recharacterize his motion as a § 2255 motion. See
Castro v. United States, 540 U.S. 375 (2003) (explaining
that a district court must notify a litigant of its intent to
recharacterize a pro se motion as a § 2255
habeas petition). This recharacterization means that any
subsequent § 2255 motion will be subject to the
statutory restriction on "second and successive"
§ 2255 motions. See 28 U.S.C. § 2255(b) &
2255(h) (prohibiting claims in second or successive §
2255 motions except under certain specified circumstances).
Accordingly, Defendant must notify this Court in writing
within thirty (30) days hereof if he contests the
recharacterization of his motion, whether he wishes to
withdraw the motion, or whether he wishes to amend the motion
to assert any other § 2255 claims aside from his
Davis claim. If Defendant fails to respond to this
Order within 30 days, his motion for relief will be
recharacterized as a § 2255 motion, the Clerk will
docket it as a new civil action,  and his claim will be
addressed under the standards applicable to § 2255
a habeas petitioner has no absolute constitutional right to
the appointment of counsel. Henderson v. Campbell,
353 F.3d 880, 892 (11th Cir. 2003) (held in the context of a
habeas proceeding under 28 U.S.C. § 2254). Rather, a
court may appoint counsel only if the interests of justice so
require. 28 U.S.C. § 2255(g) (incorporating by reference
the standards of 18 U.S.C. § 3OO6A(a) (2) (B) for the
appointment of counsel); see McCall v. Cook, 495
F.App'x 29, 31 (11th Cir. 2012) (stating that civil
litigants, even prisoners, have no constitutional right to
counsel; rather, appointment of counsel in civil cases is
"a privilege that is justified only by exceptional
circumstances" (quoted source omitted)). Here, Defendant
has not shown that the interests of justice demand the
appointment of an attorney. Accordingly, he is not entitled
to the appointment of counsel.
 Section 924(c) imposes a mandatory
sentence for a defendant who uses or carries a firearm
"during and in relation to any crime of violence."
A "crime of violence" under that section is defined
For purposes of this subsection the term "crime
of violence" means an offense that is a felony
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another [the "force" clause],
(B) that by its nature, involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense [the
18 U.S.C. § 924(c)(3). The Davis Court
invalidated only the residual clause.
The CLERK is
DIRECTED to attach a copy of the standard
form for § 2255 motions to Defendant's service copy
of this Order in case he decides to amend his filing to
include additional § 2255 claims. If Defendant chooses
to amend his motion, he must set forth all his § 2255
claims on the attached form, including his Davis
claim. In other words, if Defendant files an amended motion
on the form provided, the Court will not consider the
original motion; rather, the amended motion will supersede
the original motion in its entirety. See Pintando v.
Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir.
2007); Lowery v. Ala. Power Co., 483 F.3d 1184, 1219
(11th Cir. 2007). Any new claims filed by Defendant are
subject to the one-year statute of limitations of the
Antiterrorism and Effective Death Penalty Act
("AEDPA"), see 28 U.S.C. § 2255(f),
and all other applicable standards governing § 2255
 The Clerk shall docket the new civil
action as a motion under 28 U.S.C. § 2255 with a nunc
pro tunc filing date ...