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 7/27/2012

CASE

TITLE

United States of America vs. McKenzie

DOCKET ENTRY TEXT

For the foregoing reasons, McKenzie’s Motion to Proceed In Forma Pauperis is denied as moot.  His

Motion for the Appointment of Counsel is denied.  The Court grants McKenzie’s request that he be

given leave to file a memorandum of law in support of his § 2255 Motion.  The United States is to

file a response to McKenzie’s Motion to Vacate, Set Aside, or Correct Sentence under § 2255 in

accordance with the briefing schedule that will be set by this Court upon McKenzie’s filing of his

supporting memorandum of law.  

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

STATEMENT

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 forthe Appointment of Counsel.  Usually a would‐be litigant must pay mandated filing

fees before commencing an action in federal district court.  Section 2255 proceedings are different,

however, and do not require the filing of fees before the petitioner may commence his action under

the statute.  This is because a § 2255 motion is not regarded as an independent action, but rather as a

“continuation of the criminal case whose judgment is under attack.”  See 28 U.S.C. § 2255, Rules

Governing § 2255 Proceedings,Rule 3 Advisory Committee Notes.  As the Advisory Committee Notes

to the Rules Governing § 2255 Proceedings make clear “there 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. . .”

Rules Governing § 2255 Proceedings, Rule 3 Advisory Committee Notes.  Nevertheless, an in forma

pauperis affidavit remains attached to the form that is supplied to potential petitioners under § 2255.

According to the Committee Notes,thispractice endures toprovide the court with the information that

the petitioneris indigent, to get such information into the officialrecord so that the court may appoint

counsel in its discretion, to order the government to pay witness fees, and to grant any other rights to

which an indigent petitioneris entitled in the course of pursuing a § 2255 motion.  See Rules Governing

§ 2255 Proceedings, Rule 3 Advisory Committee Notes. Accordingly, McKenzie’s Motion to Proceed

In Forma Pauperis is denied as moot.

The decision of whetherto 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

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STATEMENT

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).  Rule 8(c) of the

Rules Governing § 2255 Proceedings allows for the appointment of counsel for indigent prisoners if

an evidentiary hearing is required.  See Rules Governing § 2255 Proceedings 8(c).  Additionally, under

Rule 6(a) the Court must appoint counsel “[i]f necessary for effective discovery.”  See Id. at 6(a). Here,

McKenzie has demonstrated that he is capable ofrepresenting himself in pursuing his § 2255 motion.

In the initial Motion that he filed with this Court he stated that “[i]n support of [his] Claims for Relief,

he has already prepared a ‘Memorandum of Points And Authorities In Support of 28 U.S.C. § 2255.’”

He further states that “[w]ithin said Memorandum [he] has carefully, and in detail, clarified his claims

which are further supported by relevant authority.”  He asks that the Court issue an Order allowing

for the filing of this memorandum of law, which it hereby does.  The Court, however, is unable to

conclude from the filings in this case that discovery will be required, and at this early time is uncertain

as to whether an evidentiary hearing will be necessary and proper.    Because, McKenzie has

demonstrated an ability to represent himself in this matter and has affirmatively undertaken the act

of preparing a memorandum of law in support of his Motion, the Court denies his Motion for the

Appointment of Counsel.

For the foregoing reasons, McKenzie’s Motion to Proceed In Forma Pauperis is denied as moot.  His

Motion for the Appointment of Counsel is denied.  The Court grants McKenzie’s request that he be

given leave to file a memorandum of law in support of his § 2255 Motion.  The United States is to file

a response to McKenzie’s Motion to Vacate, Set Aside, or Correct Sentence under § 2255 in accordance

with the briefing schedule that will be set by this Court upon McKenzie’s filing of his supporting

memorandum of law.  

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