United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION FOR APPOINTMENT
OKI MOLLWAY UNITED STATES DISTRICT JUDGE
April 24, 2018, pro se Defendant Jay K. Crisolo
filed a Motion for Appointment of Counsel that
“questions” whether he was unlawfully sentenced
and asks the court to appoint counsel to help him explore
potential claims for post-conviction relief. Crisolo is not
constitutionally or statutorily entitled to such a federally
funded fishing expedition, and the court denies his Motion.
29, 2009, Crisolo pled guilty without a plea agreement to
numerous drug crimes, including one count of conspiracy with
intent to distribute methamphetamine (21 U.S.C. § 846),
three counts of distribution of methamphetamine (21 U.S.C.
§ 841(a)(1), (b)(1)(A)-(B)), one count of being a felon
in possession of a firearm (18 U.S.C. §§ 922(g)(1),
924(a)(2)), and four counts of use of a telephone to
facilitate a conspiracy to distribute methamphetamine (21
U.S.C. § 843(b)). See ECF No. 592; ECF No. 596.
was subject to a mandatory sentence of life in prison given
the Government's filing of a Special Information under 21
U.S.C. § 851. See ECF No. 212, PageID #s
494-95. The Special Information described Crisolo's
convictions in two State of Hawaii cases, one in 1995 and one
in 1998. Each case involved convictions on two counts
(Promoting a Dangerous Drug in the Third Degree (Haw. Rev.
Stat. § 712-1243) and Unlawful Use of Drug Paraphernalia
(Haw. Rev. Stat. § 329-43.5(a)). See Id. at
PageID #s 495, 503. The Government later moved to strike the
1995 case from the Special Information. See ECF No.
593. This court granted that motion, thereby reducing the
number of Crisolo's prior felony convictions and
relieving Crisolo of the mandatory life sentence. Based on
only the prior 1998 case, Crisolo was subject to a 20-year
mandatory minimum prison term. Had he had no prior drug
conviction, he would have faced a 10-year mandatory minimum.
See 21 U.S.C. §§ 841(b)(1)(A), 851.
appealed his sentence to the Ninth Circuit. See United
States v. Crisolo, 620 Fed. App'x 601 (9th Cir.
2015); ECF No. 608. (He mistakenly claims in the present
Motion that he did not appeal. See ECF No. 640,
PageID # 2142.) His appeal argued that the Government had
breached an oral agreement by failing to move for a downward
departure under 18 U.S.C. § 3553(e). In a memorandum
opinion, the Ninth Circuit rejected this argument and
affirmed Crisolo's sentence, explaining that
“neither the existence of an oral cooperation agreement
nor the terms of such an agreement are ‘clear or
obvious' on the face of the record.” See
Crisolo, 620 Fed. App'x at 602 (internal citation
omitted); ECF No. 608, PageID #s 2038-39.
moving for the appointment of counsel, Crisolo says he is
“questioning whether his § 851 enhancement [wa]s
valid.” See ECF No. 640, PageID # 2143. This
“questioning” is allegedly based on a recent
district court decision, Zmuda v. United States, Cr.
No. 13-00246 HG-01, 2017 WL 3222538 (D. Haw. July 28, 2017)).
Crisolo asks that the court appoint counsel under the
Criminal Justice Act, 18 U.S.C. § 3006A, so that he can
explore a potential post-conviction claim. See ECF
No. 640, PageID # 2143. He says that he is not currently
“mounting a collateral attack on his sentence or
conviction, [but] rather he is seeking appointment of counsel
to represent him in post conviction proceedings.”
Id. at PageID # 2144.
The Court Declines to Appoint An Attorney.
Without Filing a § 2255 Motion, Crisolo Is Not Entitled
to a Court-Appointed Attorney.
is considering collaterally attacking his sentence, but first
wants a court-appointed attorney to help him explore the
viability of such a challenge. The court denies this request.
There is no constitutional right to counsel in federal habeas
proceedings, let alone a constitutional right to counsel to
help decide whether to initiate such a proceeding. See
Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (citing
Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)).
there a statutory right to counsel in these circumstances.
The Criminal Justice Act, 18 U.S.C. § 3006A, governs the
“furnishing [of] representation for any person
financially unable to obtain adequate representation.”
Id. § 3006A(a). The Act allows a federal court
to appoint counsel whenever the “court determines that
the interests of justice so require . . . for any financially
eligible person who . . . is seeking” federal
habeas relief. See 18 U.S.C. § 3006(a)(2)(B)
(emphasis added). It does not permit the appointment of
counsel for prisoners, like Crisolo, who are merely
“questioning” whether to seek such relief.
See Ayestas v. Davis, 138 S.Ct. 1080, 1094 (2018)
(explaining that “it is not proper to use [a] funding
statute to subsidize a ‘fishing expedition'”
(quoting United States v. Alden, 767 F.2d 314, 318
(7th Cir. 1984)); cf. Calderon v. U.S. Dist. Court for
the N. Dist. of Cal., 98 F.3d 1102, 1106 (9th Cir. 1996)
(“Habeas corpus is not a general form of relief for
those who seek to explore their case in search of its
existence.” (quoting Aubut v. State of Maine,
431 F.2d 688, 689 (1st Cir. 1970)).
arguing that the Criminal Justice Act allows a court to
“appoint counsel for indigent prisoners when[ever] the
‘interest[s] of justice so require, '”
see ECF No. 640, PageID # 2144 (quoting 18 U.S.C.
§ 3006(2)), Crisolo reads the requirement that the
prisoner be “seeking relief under section 2241, 2254,
or 2255 of title 28” right out of the statute,
see 18 U.S.C. § 3006A(2)(B). Crisolo cites no
law suggesting that this statutory requirement may be
request for counsel is premature, and the court denies his
request without prejudice to a renewed request based on later
developments. See Hansen v. State of Idaho, No.
CV03-212-SA-EJL, 2006 WL 1663611, at *3 (D. Idaho June 15,
2006) (denying a request for counsel as
“premature” when the prisoner could not yet file
a § 2254 motion); see ...