Case 1:20-mc-00004 Document 24 Filed 06/16/20 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN THE MATTER OF:
POST-CONVICTION FILING PROCEDURES
AND APPOINTMENT OF COUNSEL No. 20-MC-00004-24
ADMINISTRATIVE ORDER
This administrative order clarifies the procedures for handling post-conviction motions in
federal criminal cases, including the appointment of counsel. The Court previously authorized the
appointment of counsel, including the Office of the Public Defender and qualified members of the
Criminal Justice Act Panel, to represent defendants in certain post-conviction proceedings. See
Doc. 36 in 18-mc-00004 (Standing Order). Specifically, the Standing Order authorized the
appointment of counsel where defendant seeks: (1) habeas relief under 28 U.S.C. § 2255 based on
a retroactively applicable U.S. Supreme Court decision; (2) a sentencing reduction based on a
retroactively applicable amendment to the U.S. Sentencing Guidelines.
In 2019, the Court construed the Standing Order to permit the appointment of counsel
where a defendant may qualify for retroactive sentencing relief under the First Step Act, PL 115-
391. See Doc. 8 in 19-mc-0004 (First Step Order). The authorization was directed at Section 404
of the First Step Act, which is the only provision permitting retroactive relief. Section 404 allows
the Court to impose a reduced sentence for crack-cocaine offenders convicted before August 2010.
See Pub. L. No. 115-391, 132 Stat. 5194. The vehicle for seeking such reduction is a motion to
reduce sentence under 18 U.S.C. § 3582. The U.S. Sentencing Commission provided a list of
crack-cocaine offenders, and the Court appointed counsel in accordance with the Standing Order
and First Step Order. The Court also occasionally exercised its discretion to appoint counsel for
Case 1:20-mc-00004 Document 24 Filed 06/16/20 Page 2 of 2
crack offenders who may have been entitled to retroactive relief, but who did not appear on the
Sentencing Commission list.
It appears there is some confusion as to whether the Standing Order and First Step Order
authorize the appointment of counsel in all post-conviction motions to reduce sentence under 18
U.S.C. § 3582, including compassionate release motions. They do not. There is no constitutional
right to counsel in post-conviction proceedings. See Coronado v. Ward, 517 F.3d 1212, 1218
(10th Cir. 2008). The Court authorizes limited post-conviction appointments where Congress, the
Supreme Court, or the Sentencing Commission explicitly move to correct some error of law on a
retroactive basis (e.g., an invalid statutory clause, or sentencing disparities impacting crack
offenders). There is no authority that would authorize a blanket appointment of counsel to pursue
all types of post-conviction relief, such as discretionary compassionate release. There is also no
need to employ special screening procedures to ordinary post-conviction motions, such as
attaching a “First Step Act” case flag to § 3582 motions not involving crack-offenders, and
attorneys are cautioned not to micromanage the Clerk’s filing of post-conviction motions. If a
judge wishes to appoint counsel or apply special procedures to an individual post-conviction
motion, they may do so to the extent permitted by law. However, to reiterate and clarify, there are
no standing administrative orders that authorize the blanket appointment of counsel to assist with
ordinary post-conviction matters.
IT IS SO ORDERED this 16th day of June 2020.
FOR THE COURT:
_______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
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Notices
1:20-mc-00004 Administrative Orders
U.S. District Court
United States District Court - District of New Mexico
Notice of Electronic Filing
The following transaction was entered on 6/16/2020 at 1:15 PM MDT and filed on 6/16/2020
Case Name: Administrative Orders
Case Number: 1:20-mc-00004
Filer:
Document Number: 24
Docket Text:
ADMINISTRATIVE ORDER: In the Matter of Post-Conviction Filing Procedures and
Appointment of Counsel (cg)
1:20-mc-00004 Notice has been electronically mailed to:
1:20-mc-00004 Notice has been delivered by fax to:
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[STAMP dcecfStamp_ID=1167529506 [Date=6/16/2020] [FileNumber=10846551-
0] [52dcd7e452febffba133be10f2e92bba70299e1630d2c8056112ae5f2597771759
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