Texas Cases January 08, 2021: United States v. Lozano

Case Description

MEMORANDUM AND ORDER

Pending before the court is Defendant William Compete Lozano's ("Lozano") pro se Letter Motion for Court Appointed Counsel (#598), wherein he requests that the court appoint counsel to assist him with pursuing a motion for compassionate release. Having considered the letter, the record, and the applicable law, the court is of the opinion that the letter should be denied.

Lozano's offense of conviction stems from his participation in a large-scale, international drug-trafficking conspiracy involving the importation and distribution of at least 920 kilograms of cocaine in which he played a supervisory role. Following Lozano's plea of guilty pursuant to a non-binding plea agreement, the court sentenced him to 236 months' imprisonment, followed by a five-year term of supervised release.

Lozano requests the appointment of counsel to assist him in filing a motion for compassionate release under 18 U.S.C. § 3582(c). There is no constitutional right to appointed counsel in post-conviction proceedings. Pennsylvania v . Finley , 481 U.S. 551, 555 (1987) ("The right to appointed counsel extends to the first appeal of right, and no further."); see Garza v . Idaho , ___ U.S. ___, 139 S. Ct. 738, 749 (2019); McCleskey v . Zant , 499 U.S. 467, 494-95 (1991); Whitaker v . Collier , 862 F.3d 490, 501 (5th Cir. 2017), cert . denied , 138 S. Ct. 1172 (2018); In re Sepulvado , 707 F.3d 550, 554 (5th Cir.), cert . denied , 571 U.S. 952 (2013).

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The court may, however, in the interest of justice, appoint counsel to assist a defendant in the pursuit of post-conviction relief where a defendant has raised nonfrivolous claims with factually and/or legally complex issues. See United States v . Whitebird , 55 F.3d 1007, 1011 (5th Cir. 1995) ("After [a defendant's first appeal], the decision whether to appoint counsel rests in the discretion of the district court.").

The exercise of discretion in this area is guided . . . by certain basic principles. When applying this standard and exercising its discretion in this field, the court should determine both whether the petition presents significant legal issues, and if the appointment of counsel will benefit the petitioner and the court in addressing this claim.

United States v . Molina-Flores , No. 3:16-CR-130-N (19), 2018 WL 10050316, at *2 (N.D. Tex. Feb. 13, 2018) (quoting Jackson v . Coleman , No. 3:11-cv-1837, 2012 WL 4504485, at *4 (M.D. Pa. Oct. 2, 2012)); see Scoggins v . MacEachern , No. 04-10814-PBS, 2010 WL 3169416, at *1 (D. Mass. Aug. 10, 2010) ("In order to obtain appointed counsel, 'an indigent litigant must demonstrate exceptional circumstances in his or her case to justify the appointment of counsel.' The rare cases warranting appointment of counsel in the interests of justice typically involve nonfrivolous claims with factually and/or legally complex issues and a petitioner who is severely hampered in his ability to investigate the facts." (quoting Cookish v . Cunningham , 787 F.2d 1, 2 (1st Cir. 1986))).

Lozano is not entitled to the appointment of counsel to assist him with seeking compassionate release under 18 U.S.C. § 3582. See Finley , 481 U.S. at 555; Whitebird , 55 F.3d at 1010-11 (declining to recognize constitutional or statutory right to assistance of counsel in bringing § 3582(c)(2) motion for sentence reduction); United States v . Vasquez , No. CR 2:18-1282-S-1, 2020 WL 3000709, at *3 (S.D. Tex. June 2, 2020) ("There is no right to counsel

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in § 3582 or other post-appellate criminal proceedings."). Moreover, Lozano provides no basis for the court to conclude that the appointment of counsel would help him obtain relief. A motion "for compassionate release is not particularly complex factually or legally." United States v . Drayton , No. 10-200018, 2020 WL 2572402, at *1 (D. Kan. May 21, 2020); see United States v . Wilfred , No. 07-351, 2020 WL 4698993, at *1 (E.D. La. Aug. 13, 2020). In any event, Lozano has failed to raise any potentially viable claims or any factually or legally complex issues that could arguably justify the appointment of post-conviction counsel. Lozano is 56 years old and there is no indication that he is seriously ill, disabled, or otherwise a candidate for compassionate release. Thus, the court finds that the discretionary appointment of counsel is not warranted. See 18 U.S.C. § 3006A(a)(2) (allowing appointment of counsel under certain circumstances when "the court determines that the interests of justice so require"). Accordingly, Defendant's pro se Letter Motion for Court Appointed Counsel (#598) is DENIED.

SIGNED at Beaumont, Texas, this 8th day of January, 2021.

/s/ _________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE