Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge Virginia M. Kendall Sitting Judge if Otherthan Assigned Judge

CASE NUMBER 12 C 5254 DATE 12/27/2012

CASE

TITLE

United States of America vs. James McKenzie

DOCKET ENTRY TEXT

 Petitioner James McKenzie (“McKenzie”) brings a Renewed Motion to Proceed In Forma

Pauperis without the full prepayment of filing fees and a Renewed and Revised Motion for

Appointment of Counsel.  McKenzie also moves for an extension of time to reply to the

government’s response brief, and seeks default judgment against the government for failing to

timely respond to his petition.  For the reasons stated herein, McKenzie’s Renewed Motions [13]

and Motion for Default Judgment [15]  are denied.  McKenzie’s Motion for an Extension of Time to

reply [12]  is granted.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Background

On July 2, 2012, Petitioner James McKenzie filed a Motion to Vacate, Set Aside, or Correct

Sentence pursuant to 28 U.S.C. § 2255.  On the same day, McKenzie filed a Motion to Proceed In

Forma Pauperis and a Motion for the Appointment of Counsel.  On July 27, 2012, this Court denied

McKenzie’s Motion to Proceed In Forma Pauperis as moot because § 2255 proceedings do not

require the filing of fees.  The Court also denied McKenzie’s Motion for Appointment of Counsel,

finding “McKenzie has demonstrated that he is capable of representing himself in pursuing his §

2255 motion.”  

On October 9, 2012, McKenzie filed a Memorandum of points and authorities in support of

28 U.S.C. § 2255 relief.  The Court set a briefing schedule shortly thereafter, allowing the

government an opportunity to respond to McKenzie’s Memorandum by November 9, 2012, and

McKenzie the opportunity to reply to the government’s response by December 7, 2012.  Instead of

filing a reply, however, McKenzie has filed a Renewed and Revised Motion for Appointment of

Counsel and a Renewed Motion to Proceed In Forma Pauperis.  McKenzie also moves unopposed

for an extension of time to file his reply brief.

This Court denied McKenzie’s first Motion for Appointment of Counsel after finding

McKenzie demonstrated an ability to represent himself in this proceeding.  This determination was

based, in part, on the fact that McKenzie was able to prepare a detailed Memorandum of Points

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STATEMENT

and Authority in support of his claims.  The Court also found that appointment of counsel was not

warranted under Rules 6(a) & 8(c) of the  Rules Governing Section 2255 Cases because the Court

was unable to conclude from the filings that further discovery or an evidentiary hearing would be

required.  

In his Renewed Motion, McKenzie asks the Court to revisit this determination based on

changed circumstances that have caused him to “los[e] his ability to represent himself in this

matter....” (Pet. Mot. ¶ 13.)  McKenzie states in his Renewed Motion that he did not actually

prepare or perform research for his original § 2255 Motion and Memorandum. (Id. ¶ 1.)  According

to McKenzie, the  original memorandum was prepared by a fellow federal prisoner who had

served several years in prison, completed a paralegal course, litigated similar issues in his own

case, and helped other prisoners in their litigation efforts. (Id. ¶ 2.)  McKenzie states that this

“seasoned federal writ writer” has since been transferred to Florida, leaving McKenzie “high‐and‐

dry” and unable to advance his case further without the assistance of a trained attorney. (Id. ¶¶

2–3, 5.)  McKenzie also states that the drafter of the motions currently before this

Court—McKenzie’s Renewed Motion to Proceed In Forma Pauperis, Motion for an Extension of

Time to File a Reply to Government’s Response, and Renewed and Revised Motion for

Appointment of Counsel—is “doing McKenzie a favor” and does not have the time to provide

McKenzie meaningful assistance in this case.  

Legal Standard

The decision of whether to appoint counsel in a § 2255 proceeding is left to the sound

discretion of this Court.  See Mitchell v. U.S., 359 F.2d 833, 835 (7th Cir. 1966).  For a petitioner

whose case does not involve the death penalty, there is no statutory or constitutional entitlement to

the appointment of counsel in a  § 2255 proceeding.  See Pennsylvania v. Finley, 481 U.S. 551, 555

(1987); Powell v. Davis, 415 F.3d 722, 727 (7th Cir. 2005); Pitsonbarger v. Gramley, 141 F.3d 728, 737

(7th Cir. 1998); Oliver v. United States, 961 F.2d 1339 (7th Cir. 1992); Rauter v. United States, 871 F.2d

693 (7th Cir.1989).  However, the Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B), authorizes a

district court to appoint counsel for a petitioner seeking habeas relief under 28 U.S.C. § 2255 where

(1) the petitioner is financially eligible, and (2) appointment is necessary for effective utilization of

discovery procedures, an evidentiary hearing is required, or if the “interests of justice so require.”

See 18 U.S.C. § 3006A(a)(2); Rules 6(a) & 8(c), Rules Governing Section 2255 Cases in the United

States District Courts.  Counsel also may be appointed in Section 2255 proceedings pursuant to 28

U.S.C. § 1915(e), which requires (1) a threshold inquiry into the indigent’s efforts to secure counsel,

and (2) a determination of whether, given the difficulty of the case, the petitioner appears

competent to litigate the case himself. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (citing Farmer

v. Haas, 990 F. 2d 319, 321–22 (7th Cir. 1993)); Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th

Cir. 1992).  

Discussion

A petitioner seeking appointment of counsel under 18 U.S.C. § 3006A must demonstrate

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STATEMENT

financial eligibility. See 18 U.S.C. § 3006A(a)(2).  Although McKenzie attached a financial affidavit

to his original Motion to Proceed In Forma Pauperis, which he filed in July of 2012, he has not

submitted a new financial affidavit or any other documentation related to his financial status with

his Renewed Motions.  Without an up‐to‐date financial affidavit and certificate verifying the funds

and average monthly deposits in McKenzie’s bank account over the past six months, this Court is

unable to determine whether McKenzie is still financially eligible for appointment of counsel under

18 U.S.C. § 3006A.  

However, even assuming—reasonably—that McKenzie is still impoverished and unable to

afford private counsel, appointment of counsel is not appropriate at this time because McKenzie

has not shown a need for additional discovery, an evidentiary hearing, or demonstrated that the

“interests of justice” require appointment in his case.  McKenzie’s Petition is based on claims that

his trial counsel rendered ineffective assistance by failing to challenge the application of §

841(b)(1)(A)(ii) or seek a downward departure at his sentencing hearing.  McKenzie offers no

reason—nor can this Court discern one—explaining how the presentation of his ineffective

assistance of counsel claims would be aided by further discovery or an evidentiary hearing.

Nor has McKenzie demonstrated that the interests of justice require appointment in this

case.  While McKenzie’s ability to represent himself may be somewhat diminished by the departure

of his “writ writer,” the Court finds that McKenzie is not left in a position where he is unable to

obtain justice without a lawyer.  When determining whether a petitioner is capable of representing

themselves, “the question is not whether a lawyer would present the case more effectively than the

pro se plaintiff; ‘if that were the test, district judges would be required to request counsel for every

indigent litigant.’ ” Pruitt v. Mote, 503 F. 3d 647, 655 (7th Cir. 2007) (quoting Johnson v. Doughty, 433

F.3d 1001, 1006 (7th Cir. 2006)).  Rather, the question is “whether the difficulty of the case–factually

and legally–exceeds the particular plaintiff’s capacity as a layperson to coherently present it to the

judge or jury himself.” Id. Here, McKenzie’s claims of ineffective assistance of counsel are not

particularly complex and unlikely to require further discovery, hearings or procedural

maneuvering.  Furthermore, McKenzie has already put forth his substantive arguments in his

Memorandum of Points and Authority, which he had assistance in preparing.  The only pending

action required of McKenzie in this case is the filing of a reply brief, which he “neither required by

the Constitution nor essential for appellate review.” Malizzio v. U.S., 46 F.3d 1133, at *5 (7th Cir.

1995) (citing United States v. Birtle, 792 F.2d 846, 848 (9th Cir. 1986); Rule 4(b) of the Rules

Governing § 2255 Proceedings).

For similar reasons, McKenzie’s Renewed and Revised Motion for Appointment of Counsel

also fails under 28 U.S.C. § 1915(e).  Even if McKenzie could show that he has made efforts to

obtain counsel before seeking the Court’s assistance—which he has not—the Court finds that,

given the complexity of the claims in this § 2255 Motion, McKenzie is capable of representing

himself through the remainder of this proceeding.

McKenzie’s Renewed Motion to Proceed In Forma Pauperis is also denied.  As the Court

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STATEMENT

stated in its previous Order, Section 2255 proceedings do not require the filing of fees. See 28 U.S.C.

§ 2255, Rules Governing § 2255 Proceedings, Rule 3 Advisory Committee Notes (“[T]here is no

need to have a forma pauperis affidavit to proceed with the action since there is no requirement of a

fee for filing the motion ....”).

Lastly, McKenzie moves for default judgment against the government, alleging that the

government failed to timely file its response to McKenzie’s Memorandum in support of his petition

for relief under § 2255.  The Court denies McKenzie’s Motion for Default because the government

did in fact file its response in compliance with the Court’s November 9, 2012 deadline, (Dkt. No.

10.), but was unable to deliver a physical copy of the response to McKenzie because he was

transferred from a facility in Pekin, Illinois, to a new facility in Florida.  The government has

indicated in its Reply to McKenzie’s Motion for an Extension of time that its search of the U.S.

Bureau of Prisons Inmate Locate database, which was conducted on December 6, 2012, indicated

that McKenzie was still in Pekin, Illinois.  The government states that it will mail McKenzie a copy

of its Response as soon as it becomes aware of his new address.    

Conclusion

For the reasons stated, McKenzie’s Renewed Motion to Proceed In Forma Pauperis [13‐1] is

denied as moot.  His Renewed and Revised Motion for the Appointment of Counsel [13‐2]  and

Motion for Default Judgment [15]  are denied.  The Court grants McKenzie’s Motion for an

Extension of Time to reply to the government’s response brief [12].  McKenzie is to file his reply

brief by February 22, 2013.  The Government is directed to ensure that McKenzie receives the

response brief by January 15, 2013.

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