United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge.
8, 2019, Defendant, Jackie Dale Mullikin, proceeding pro
se, filed identical letters in the above-captioned
cases, addressed to the “Federal Public Defenders
Office, ” requesting legal advice regarding the
retroactivity of the United States Supreme Court's
decision in “Davis v. United States” and
whether the Davis decision affects either his
conviction or his sentence. Additionally, Mullikin asks,
“Do I need to file an application with the Sixth
Circuit Court of Appeals requesting permission to file a
Second or Successive Motion to Vacate, Set Aside, or Correct
[his] Sentence, Pursuant to Title 28 U.S.C.
§2255(h)?” Finally, Mullikin asks whether he is
entitled to representation by counsel.
United States District Court for the Eastern District of
Kentucky does not have a Federal Public Defenders Office.
Instead, the Court appoints criminal defendants counsel under
the Criminal Justice Act (“CJA”). Previously,
Thomas C. Lyons was appointed as CJA counsel for Mullikin.
However, Lyons is no longer appointed as Mullikin's
counsel, and Mullikin is currently proceeding pro
se. Since Mullikin is represented by neither CJA counsel
nor a public defender, the Court will address Mullikin's
Mullikin's requests for legal advice concerning the
effect Davis has on his case and whether he needs to
request permission to file a successive motion to vacate, the
Court cannot provide legal advice or instruct Mullikin on
what he should file. To the extent Mullikin wishes to either
move for relief under 28 U.S.C. § 2255 or ask that the
Sixth Circuit grant him permission to file a successive
motion to vacate, he may do so.
Court will construe Mullikin's inquiries into whether he
is entitled to representation by counsel as motions to
appoint counsel. The language of Joint Local Rule of Criminal
Procedure 12.1(a) provides as follows:
Except for routine motions - such as motions for an extension
of time - a motion must state with particularity the grounds
for the motion, the relief sought, and the legal argument
necessary to support it.
LCrR 12.1(a). While this Court acknowledges its obligation to
liberally construe Mullikin's pro se motions it
has no authority to create arguments for him. Coleman v.
Shoney's, Inc., 79 Fed.Appx. 155, 157 (6th Cir.
2003) (“Pro se parties must still brief the issues
advanced with some effort at developed
argumentation.”). Mullikin has failed to meet the
requirements of LCrR 12.1(a). Since Mullikin provides no
argument in support of his request for the appointment of
counsel, the Court is unable to grant the requested relief.
a petitioner does not have a constitutional right to habeas
counsel. Post v. Bradshaw, 422 F.3d 419, 423 (6th
Cir. 2005). If the petitioner is proceeding as a pauper and
the interests of justice so require, a federal court has the
discretion to appoint counsel for any petitioner seeking
habeas relief. See 28 U.S.C. § 2255(g); see
also 18 U.S.C. § 3006A(a)(2)(B). In exercising its
discretion, the Court should consider the legal and factual
complexity of the case, petitioner's ability to
investigate and present his claims, and any other factors
relevant to the given case. Hoggard v. Purkett, 29
F.3d 469, 471 (8th Cir. 1994). Also, pursuant to 18 U.S.C.
§ 3006A(a)(2)(B), “[w]henever the United States
magistrate judge or the court determines that the interests
of justice so require, representation may be provided for any
financially eligible person who . . . is seeking relief under
section 2241, 2254, or 2255 of title 28.” “The
interests of justice require the court to appoint counsel
when the district court conducts an evidentiary hearing on
the petition.” Hoggard, 29 F.3d at 471 (citing
Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.
1994)); see also Rule 8(c) of the Rules Governing
Section § 2255 (“If an evidentiary hearing is
warranted, the judge must appoint an attorney to represent a
petitioner who qualifies to have counsel appointed under 18
U.S.C. § 3006A.”).
the Court can consider whether appointment of counsel is
required due to the need for an evidentiary hearing or the
interests of justice, Mullikin must first file a timely 28
U.S.C. § 2255 motion within the one-year statute of
limitations, pursuant to 28 U.S.C. § 2255(f).
See 18 U.S.C. § 3006A(a)(2)(B). Mullikin's
motions to appoint counsel are premature because “[t]he
Court cannot appoint counsel at government expense to provide
legal advice and represent [Mullikin] prior to the filing of
a § 2255 motion.” U.S. v. Wooden, No.
1:03-cr-66, 2008 WL 5110790, at *2 (E.D. Tenn. Nov. 26, 2008)
(denying Defendant's motion to appoint counsel where
Defendant had yet to file a motion to vacate pursuant to 28
U.S.C. § 2255). Mullikin has not filed a § 2255
motion. Instead, Mullikin has asked whether he should request
that the Sixth Circuit grant him permission to file a second
or successive § 2255 motion. Since Mullikin has not
filed a motion under 28 ...