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United States v. Crisolo

United States District Court, D. Hawaii

May 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JAY K. CRISOLO, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION.

         On 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.

         II. BACKGROUND.

         On July 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.

         Crisolo 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.

         Crisolo 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.

         In now 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.

         III. The Court Declines to Appoint An Attorney.

         A. Without Filing a § 2255 Motion, Crisolo Is Not Entitled to a Court-Appointed Attorney.

         Crisolo 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)).

         Nor is 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)).

         In 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 ignored.

         Crisolo's 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 ...


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