United States District Court, D. New Jersey
THOMAS J. SHANNON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
G. SHERIDAN UNITED STATES DISTRICT JUDGE
is proceeding pro se with a motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. §
2255. This Court received petitioner's § 2255 motion
in October, 2018. (See ECF 1). Thereafter,
petitioner requested, and was granted, additional time in
which to file a memorandum of law in support of his §
2255 motion. (See ECF 2 & 6). Petitioner
subsequently filed his memorandum of law in support of his
§ 2255 motion in December, 2018. (See ECF 9).
The government filed its response to the § 2255 motion
in July, 2019. (See ECF 23 & 24).
months after the response was filed, petitioner filed two
letters with this Court. (See ECF 25 & 26).
Petitioner requests that he be given his "case
discovery" from his trial and appellate counsel in the
form of twenty-eight cds and dvds. (See ECF 25 at
1). Additionally, he notes that he does not have a copy of
his memorandum of law in support of his § 2255 motion
because it was filed by a paralegal when petitioner was
housed at a different correctional facility. (See
Id. at 2). Finally, petitioner seeks the appointment of
counsel. (See ECF 26).
Court conducted a phone conference between the parties
considering the requests made by petitioner in his letters to
the Court on November 20, 2019. During that conference, this
Court inquired of petitioner's need for additional
materials. This inquiry was made because petitioner had
already filed his § 2255 motion. While petitioner
stressed his need for his "case discovery," the
only particular document referenced with any real specific
particularity during the conference call was the amended
search warrant. However, this Court notes that the
government supplied petitioner with the amended search
warrant as Exhibit B to its response in opposition to
petitioner's § 2255 motion. (See ECF 23-2).
Rule 6(a) of the Rules Governing § 2255 Cases indicates
that for good cause, a court may authorize a party to conduct
discovery. However, petitioner has not come forward with
enough good cause to warrant granting him the opportunity to
conduct discovery at this time. Nevertheless, this Court will
order the Clerk to serve Exhibit B of the government's
response to petitioner out of the abundance of caution.
stated above, petitioner also states that he does not have a
copy of his memorandum of law filed in support of his §
2255 motion. This Court will have the Clerk send petitioner a
copy of his memorandum of law in support of his § 2255
also requests the appointment of counsel. Petitioner does not
have a right to counsel in habeas proceedings. See Reese
v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991),
superseded on other grounds by statute, 28 U.S.C.
§ 2254. However, 18 U.S.C. § 3006A(a)(2)(B)
provides that the court has discretion to appoint counsel
where ''the court determines that the interests of
justice so require ..." In Reese, the Third
Circuit explained that in determining whether counsel should
be appointed, a court "must first decide if petitioner
has presented a nonfrivolous claim and if the appointment of
counsel will benefit the petitioner and the court. Factors
influencing a court's decision include the complexity of
the factual and legal issues in the case, as well as the pro
se petitioner's ability to investigate facts and present
claims." Reese, 946 F.2d at 263-64.
Court does not find that the appointment of counsel is
warranted at this time. Indeed, petitioner has already filed
his § 2255 motion and the issues involved in this case
do not appear overly complex. Thus, his request will be
denied. The denial will be without prejudice. If this Court
determines that an evidentiary hearing is warranted on any of
petitioner's claims, appointment of counsel will be
reviewed at that time. In light of the fact that petitioner
did not possess a copy of his brief in support of his §
2255 motion, additional time in which to file a reply brief
in support of his § 2255 motion is granted.
after the phone conference, petitioner filed another letter
with this Court that indicates a request to add an
ineffective assistance of counsel claim to this action.
(See ECF 29). Respondent shall be given thirty days
in which to file a response to petitioner's request.
Thereafter, petitioner shall have thirty (30) days in which
to file a reply to the government's response to his
IT IS this Jday of December, 2019, ORDERED that
petitioner's request for discovery (ECF 25) is denied;
and it is further
that petitioner's request for the appointment of counsel
(ECF 26) is denied without prejudice; and it is further
that petitioner shall have sixty (60) days from the date of
this memorandum and order in which to file his reply brief in
support of his § 2255 motion, should he elect to do so;
and is further
that respondent shall file a response to petitioner's
request to amend his § 2255 motion (ECF 29) within
thirty (30) days of this order; petitioner may file a reply
within thirty (30) days of respondent's response should
he elect to do so; and it is further
that the Clerk shall serve: (1) this memorandum and order;
(2) Exhibit B to the government's response to the §
2255 motion (ECF 23-2); and petitioner's memorandum of
law in support of his ...