Murillo v. United States

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 SANTOS PETER MURILLO, CASE NO. C20-0484JLR 11 Petitioner, ORDER ON MOTION FOR v. EXTENSION OF TIME AND 12 MOTION TO APPOINT COUNSEL UNITED STATES OF AMERICA, 13 Respondent. 14

15 Before the court is Petitioner Santos Peter Murillo’s motion for extension of time 16 (MFE (Dkt. # 6)) and motion to appoint counsel (MTA (Dkt. # 9)). The court has 17 considered the motions, the relevant portions of the record, and the applicable law. Being 18 fully advised, the court DENIES Mr. Murillo’s motions. 19 On March 27, 2020, pursuant to 28 U.S.C. § 2255, Mr. Murillo filed a petition for 20 habeas corpus or motion to vacate, set aside, or correct his sentence. (See Pet. (Dkt. 21 # 1)); see also United States v. Murillo, No. CR16-0113JLR (W.D. Wash.). Mr. 22 Murillo’s habeas petition is 36 pages long and includes extrinsic evidence and lengthy 1 arguments in support of Mr. Murillo’s alleged grounds for relief. (See generally id.) On 2 April 6, 2020, Mr. Murillo filed a motion seeking a 90-day extension of time in which to

3 file a “memorandum of law in support of his recently submitted Section 2255 motion.” 4 (See MFE at 1.) On April 16, 2020, Mr. Murillo filed a motion for the court to appoint 5 counsel to assist Mr. Murillo with the memorandum that Mr. Murillo seeks to submit in 6 support of his habeas petition. (See MTA at 1-2.) 7 Mr. Murillo is not entitled to a 90-day extension to file a memorandum in support 8 of his habeas petition under the Rules Governing Section 2255 Proceedings for the

9 United States District Courts. According to the Rules Governing Section 2255 10 Proceedings for the United States District Courts, Mr. Murillo was required to include all 11 grounds for relief available to him in his motion for habeas relief. See Rule 2(b) of the 12 Rules Governing Section 2255 Proceedings for the United States District Courts (“The 13 motion must . . . (1) specify all the grounds for relief available to the moving party[.]”).)

14 The rules governing Section 2255 proceedings do not include a procedure through which 15 Mr. Murillo may supplement his habeas motion with a “memorandum of law,” and Mr. 16 Murillo does not identify any authority that would entitle him to file such a 17 memorandum. 18 Moreover, even if there was a procedural vehicle through which Mr. Murillo could

19 file a separate memorandum of law, the court finds that he has failed to articulate 20 sufficient grounds to justify his delayed filing. Mr. Murillo claims that he needs an 21 extension because (1) Mr. Murillo has “just recently” received evidence related to his 22 Brady challenge, and (2) the COVID-19 pandemic has limited his access to the law 1 library. (See MFE at 2-3.) Mr. Murillo’s motion does not provide any specificity as to 2 what new evidence he received or when he received that new evidence. (See MFE at 2-

3 3.) Nor does Mr. Murillo explain why he was unable to adequately prepare his § 2255 4 motion prior to the outbreak of the COVID-19 pandemic in March 2020. (See id.) As 5 such, Mr. Murillo’s request for an extension of time is DENIED. 6 Mr. Murillo also asks the court to appoint counsel to represent him in this 7 matter. (See MTA at 1-3.) Pursuant to 18 U.S.C. § 3006A, a district court may appoint 8 counsel in the “interests of justice” in a case brought under 28 U.S.C. § 2255. 18

9 U.S.C. § 3006A(a)(2)(B); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). “In 10 deciding whether to appoint counsel in a habeas proceeding, the district court must 11 evaluate the likelihood of success on the merits as well as the ability of the petitioner to 12 articulate his claims pro se in light of the complexity of the legal issues 13 involved.” Weygandt, 718 F.2d at 954 (italics in original). Having reviewed the record

14 in this case and being mindful of the standard set forth in Weygandt, the court concludes 15 that appointment of counsel is not warranted in this matter. Specifically, the court notes 16 that Mr. Murillo alleges that he needs appointed counsel to “prepare and submit a 17 memorandum of law to the [c]ourt” in support of his § 2255 petition (see MTA at 2). As 18 discussed above, however, Mr. Murillo is not entitled to file such a memorandum.

19 Further, the court has reviewed Mr. Murillo’s filings to date and concludes that he is 20 capable of articulating his claims pro se in this matter. Accordingly, his motion to 21 appoint counsel is DENIED. 22 // 1 For the reasons set forth above, Mr. Murillo’s motion for extension of time (Dkt. 2 # 6) and motion to appoint counsel (Dkt. # 9) are DENIED.

3 Dated this 8th day of May, 2020. 4 A 5 6 JAMES L. ROBART United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18

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