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UNITED STATES OF AMERICA, Plaintiff, v. LORENZO CANALES, Defendant.

Thomas A. Varlan UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER

This matter is before the Court on defendant's pro se motion to appoint counsel to assist him in filing a motion for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A) [Doc. 661]. Defendant states that is at a high risk of contracting COVID-19 at CI Giles W. Dalby, where he is currently housed.

The Court notes that the constitutional right to assistance of counsel does not extend to motions for post-conviction relief. Pennsylvania v. Finley, 482 U.S. 551, 555 (1990) (holding that a defendant had no federal constitutional right to counsel in a proceeding collaterally attacking a conviction which has become final); see also Shedwick v. Warden N. Cent. Corr. Inst., No. 16-3203, 2016 WL 11005052 (6th Cir. Dec. 30, 2016) ("[T]here is no right to counsel in a post-conviction action."). Moreover, no statutory authority establishes that a defendant is entitled to counsel for § 3582(c) proceedings. See United States v. Harris, 568 F.3d 666, 669 (8th Cir. 2009) (holding that defendant was not entitled to appointment of counsel in his § 3582(c)(2) proceedings and "agree[ing] with the six circuits that have held that there is no right to appointed counsel in sentence modification proceedings under § 3582(c)" (citing United States v. Young, 555 F.3d 611, 615 (7th Cir. 2009); United States v. Olden, 296 F. App'x. 671, 673 (10th Cir. 2008) (unpublished); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Townsend, 98 F.3d 510, 512-13 (9th Cir. 1996); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 465 (2d Cir. 1995); Evans v. United States, 46 F.3d 1135, No. 94-2779, 1995 WL 46553 (8th Cir. 1995) (per curiam) (unpublished)); cf. United States v. Johnson, Nos. 15-6413/16-5346, 2016 WL 10704239 (6th Cir. Nov. 21, 2016) (declining to decide whether defendant was entitled to relief under § 3582(c)(2) where "independent review of the record reveal[ed] no issues of arguable merit" but noting that "[h]istorically, there has been no such right").

Notwithstanding the above, this Court's Standing Order 19-04 appointed the Federal Defender Services of Eastern Tennessee ("FDSET") to represent, inter alia, defendants who contact FDSET to file a motion for compassionate release on his or her behalf where FDSET determines that the motion would not be frivolous. Thus, in light of Standing Order 19-04's directive, the Court finds defendant's request for counsel is moot. Accordingly, defendant's motion for appointment of counsel [Doc. 661] is DENIED as moot.

IT IS SO ORDERED.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

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United States v. Canales
(Nov 2, 2020)