Case 1:22-mc-00004 Document 12 Filed 02/09/22 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN THE MATTER OF:
REPRESENTATION IN
BORDEN V. UNITED STATES,
141 S.CT. 1817 (2021) CASES 22-MC-00004-12
ADMINISTRATIVE ORDER
Pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. §§ 3006(a)(1) and (c), the
Office of the Federal Public Defender for the District of New Mexico (FPD) is appointed to
research and investigate whether certain incarcerated defendants qualify for relief under 28 U.S.C.
§ 2255 and Borden v. United States, 141 S.Ct. 1817 (2021). The United States Sentencing
Commission (USSC) provided a list of individuals who may be impacted by Borden. The Court
will transmit the USSC List to the FPD but makes no determination as to whether any listed
defendant is entitled to relief and/or the appointment of counsel.
The FPD is granted access to Presentence Investigation Reports (PSRs), Judgments in a
Criminal Case (JCCs), including sealed JCCs, and Statements of Reasons (SORs) for the purpose
of determining eligibility for Borden relief, and for determining whether a conflict of interest
precludes the FPD from representing a defendant. The Office of the Clerk of Court (Clerk’s
Office) has added Kurt Mayer (FPD Designee) as a case participant in every case on the USSC
List for the purpose of researching and investigating eligibility for Borden relief. The United
States Probation Office for the District of New Mexico (USPO) shall ensure that PSRs, JCCs, and
SORs appear on the docket for each case on the USSC List, and the FPD Designee shall have
access to those documents. The FPD Designee may also request access to PSRs, JCCs, and SORs
from the USPO in cases that do not appear on the USSC List, provided an informed investigation
Case 1:22-mc-00004 Document 12 Filed 02/09/22 Page 2 of 2
shows a reasonable possibility that the defendants may be eligible for relief under Borden. The
FPD must do so on a case-by-case basis or using a reasonably tailored list of cases. To avoid
undue burden, expansive or categorical requests - such as requests that the USPO disclose/upload
documents in all cases involving sentences under a particular statute - shall not be permitted absent
a demonstration of good cause and further order of the Court.
When the FPD forms a good faith basis, through its investigation, that a defendant may be
entitled to Borden relief, it shall file a motion to appoint counsel. The FPD may file an omnibus
motion to appoint Borden counsel in this administrative case directed at a group of Defendants,
with an email copy to the Chief Judge’s chambers, or file motions to appoint Borden counsel on a
case-by-case basis. Any such motion must specify whether the individual Defendant seeks
appointment of the FPD or a CJA panel attorney, based on a FPD conflict.
Finally, the FPD is hereby given notice that defendants must obtain permission from the
United States Court of Appeals for the Tenth Circuit to file a second or successive § 2255 claim
based on Borden before initiating a § 2255 proceeding in this Court. See 28 U.S.C. §
2244(b)(3)(A). Defendants represented by counsel shall follow the proper procedural steps set out
in the statutes and rules governing § 2255 proceedings to obtain relief based on Borden, and the
FPD shall incorporate those procedural requirements in formulating a plan to handle Borden
claims.
IT IS SO ORDERED this 9th day of February, 2022.
_______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
District NextGen v1.6.2 LIVE DB https://nmd-ecf.sso.dcn/cgi-bin/Dispatch.pl?200064280873636
Notices
1:22-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 2/9/2022 at 4:12 PM MST and filed on 2/9/2022
Case Name: Administrative Orders
Case Number: 1:22-mc-00004
Filer:
Document Number: 12
Docket Text:
ADMINISTRATIVE ORDER: In the Matter of Representation in Borden V. United States, 141
S.CT. 1817 (2021) Cases (cg)
1:22-mc-00004 Notice has been electronically mailed to:
1:22-mc-00004 Notice has been delivered by fax to:
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The following document(s) are associated with this transaction:
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Electronic document Stamp:
[STAMP dcecfStamp_ID=1167529506 [Date=2/9/2022] [FileNumber=11788117-0
] [7173403ecc0673ae30bf9ac572b872ee5d45cef93c9f624a0e40a44d1d423420fe0
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