Washington v. United States ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 18 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CHAD WASHINGTON,
Petitioner-Appellant,
v. No. 99-3383
(D.C. No. 96-CR-10060-01-JTM)
UNITED STATES OF AMERICA, (D. Kan.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Chad Washington appeals the district court’s denial of his
motion for appointment of counsel and for an extension of time in which to file a
federal habeas petition pursuant to 28 U.S.C. § 2255. We affirm.
Defendant was convicted and sentenced in federal court in June 1997. This
court affirmed his conviction on November 4, 1998. Pursuant to the recently
enacted Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
defendant had one year from the time his conviction became final in which to file
a motion to vacate, set aside or correct his sentence. See 28 U.S.C. § 2255. As
he did not petition for certiorari review with the United States Supreme Court
after his direct appeal, his conviction became final when the ninety-day period for
filing a petition expired. See United States v. Burch, 202 F.3d 1274, 1276, 1279
(10th Cir. 2000); Rhine v. Boone, 182 F.3d 1153, 1155-56 (10th Cir. 1999), cert.
denied, 120 S. Ct. 808 (2000); see also Caspari v. Bohlen, 510 U.S. 383, 390-91
(1994). Therefore, defendant had until February 2, 2000, to file his § 2255
motion with the district court.
On October 18, 1999, defendant filed a motion for an appointment of
counsel and/or an extension of the time in which to file his 2255 motion. On
November 18, 1999, the district court denied defendant’s motion. Defendant has
appealed that decision. We review for an abuse of discretion both the denial of
appointed counsel in a habeas case, see Swazo v. Wyoming Dep’t of Corrections
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State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994) and the denial of a
request for an extension of time, see Ellis v. University of Kan. Med. Ctr., 163
F.3d 1186, 1193 (10th Cir. 1998).
There is no constitutional right to counsel beyond the direct appeal of a
criminal conviction. See Swazo, 23 F.3d at 333. The district court has discretion,
however, to appoint counsel in a habeas case when “the interests of justice so
require.” 18 U.S.C. § 3006A(2)(B). Here, defendant’s motion did not
demonstrate a single ground for his habeas petition, arguing only in conclusory
terms that his case is complex, that he did not have a good understanding of the
law, and that he would be better served with an attorney. His brief on appeal,
which is clearly written by someone with formal legal training, contains the same
conclusory arguments. 1 The district court was well within its discretion to refuse
to appoint counsel for defendant.
So too, the district court properly exercised its discretion in denying
defendant’s request for an extension of the AEDPA statute of limitations. This is
not, as argued on appeal, a simple request for a continuance. Congress has
1
We note that an attorney who “ghost writes” a brief for a pro se litigant
may be subject to discipline both for a violation of the rules of professional
conduct and for contempt of court. See, e.g. , Wesley v. Don Stein Buick, Inc. ,
987 F. Supp. 884, 885-87 (D. Kan. 1997); Johnson v. Board of County Comm’rs
for County of Fremont , 868 F. Supp. 1226, 1231-32 (D. Colo. 1994), reversed in
part on other grounds , 85 F.3d 489 (10th Cir. 1996).
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expressly limited the time in which a prisoner can bring a § 2255 motion to one
year after his conviction becomes final, and any extension of this time period
contravenes Congress’ clear intent to accelerate the federal habeas process. See,
e.g., United States v. Duffus, 174 F.3d 333, 337-38 (3rd Cir.) (approving denial
of motion to amend habeas petition to add new claims because
it would have frustrated the intent of Congress that claims under
28 U.S.C. § 2255 be advanced within one year after a judgment of
conviction becomes final unless any of the other circumstances in
28 U.S.C. § 2255 are applicable. . . . We reiterate that if the court
permitted the amendment it would have acted contrary to the policy
of the AEDPA, which requires courts to measure the running of the
limitations periods from the date on which the judgment of
conviction becomes final.),
cert. denied, 120 S. Ct. 163 (1999). Such judicial intervention is justified only
under “extraordinary” or “rare and exceptional” circumstances. See United
States v. Willis, 202 F.3d 1279, 1281 n.3 (10th Cir. 2000); Davis v. Johnson, 158
F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S. Ct. 1474 (1999).
Defendant has not demonstrated such circumstances. Although he argues
that he was unable to obtain his transcripts, he presented no evidence
demonstrating his efforts to obtain them or the district court’s inability to provide
them. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Nor has he shown
due diligence in pursuing his habeas claims, without explaining why he waited
almost a full year after his appeal was denied to begin the process of preparing a
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§ 2255 motion. See id. Accordingly, the district court did not abuse its discretion
in denying his motion for an extension of time.
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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