United States v. Wallace
2:11-cr-00094
D. Nev.Jul 2, 2015Background
- In 2011 Adam Brent Wallace pleaded guilty to receipt of child pornography and was sentenced to 97 months’ imprisonment and lifetime supervised release.
- Wallace previously filed a § 2255 motion that the district court denied.
- Wallace filed two additional motions treated as second and third § 2255 petitions and a motion to appoint counsel.
- The Government opposed the new § 2255 filings; Wallace replied pro se and the court construed his filings liberally.
- The Ninth Circuit did not certify any second-or-successive § 2255 motions for Wallace, a statutory prerequisite under 28 U.S.C. § 2255(h).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court may consider Wallace's second/third § 2255 motions without appellate certification | Government: second/third motions are successive and uncertified, so they must be dismissed | Wallace: seeks relief via new § 2255 filings (and one motion styled as dismissal for failure to state an offense) | Denied: motions are successive; without Ninth Circuit certification the district court cannot consider them and must deny them |
| Whether to appoint counsel for Wallace on his § 2255 petitions | Government: not required; no showing the interests of justice necessitate counsel | Wallace: requests appointment of counsel to pursue § 2255 relief | Denied: no constitutional right to counsel for collateral attacks; court exercises discretion and finds appointment not required |
| Whether a certificate of appealability (COA) should issue | Government: implied opposition to COA given procedural bar | Wallace: presumably seeks ability to appeal denial | Denied: court denies a COA |
| Whether any procedural alternative exists for Wallace to proceed | N/A | Wallace: none beyond requesting court to hear motions | Court: Wallace must obtain authorization from the Ninth Circuit under § 2244 / Rule 9 before district court may consider successive § 2255 motions |
Key Cases Cited
- Pennsylvania v. Finley, 481 U.S. 551 (1987) (no right to appointed counsel beyond first appeal of right)
- Wainwright v. Torna, 455 U.S. 586 (1982) (reiterating limits on right to counsel for discretionary appeals)
- Ross v. Moffitt, 417 U.S. 600 (1974) (no constitutional right to counsel on discretionary appeals)
- Boyd v. Dutton, 405 U.S. 1 (1972) (discussing finality of convictions and counsel on collateral attacks)
- Brown v. United States, 623 F.2d 54 (9th Cir. 1980) (appointment of counsel on § 2255 relief is discretionary and warranted where due process requires)