D.C. No. 6:06-CR-10129-JTM-1 D. Kansas
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
ORDER AND JUDGMENT [*]
Stephen H. Anderson Circuit Judge
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
After his conviction in 2006, defendant and appellant James E. Baker filed a series of unsuccessful appeals following unsuccessful motions and petitions in district court. He then filed a Motion for Appointment of Counsel, which the district court denied by written Memorandum and Order on April 1, 2014. He now appeals that denial, which we affirm.
Mr. Baker was convicted by a jury in 2006 of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). After finding he qualified as an Armed Career Criminal under 18 U.S.C. § 924(e), the district court sentenced him to a within-Guidelines sentence of 235 months' imprisonment. We affirmed that conviction and sentence on appeal. United States v. Baker, 508 F.3d 1321 (10th Cir. 2007).
Mr. Baker proceeded to file a series of collateral attacks on his conviction and sentence. When he filed his first 28 U.S.C. § 2255 petition alleging ineffective assistance of counsel, we denied him a certificate of appealability ("COA"). United States v. Baker, 371 Fed.Appx. 987 (10th Cir. 2010) (unpublished). He thereafter filed three motions for authorization to file a second or successive § 2255 motion, all of which we denied. In re Baker, No. 10-3283 (10th Cir. Nov. 10, 2010) (unpublished); In re Baker, No. 11-3240 (10th Cir. Aug. 18, 2011) (unpublished); United States v. Baker, 484 Fed.Appx. 258 (10th Cir. June 12, 2012) (unpublished).
In 2013, Mr. Baker sought to vacate his conviction under Fed.R.Civ.P. 60(d)(3), claiming that the government had perpetrated fraud upon the court. The district court dismissed the claim, after recharacterizing it as a second or successive 28 U.S.C. § 2255 claim. Mr. Baker appealed that dismissal to our court, and we denied him a COA, dismissing his appeal because he failed to show "that jurists of reason would find it debatable whether the district court was correct in ruling that his motion was an unauthorized second-or-successive § 2255 motion." United States v. Baker, 718 F.3d 1204, 1208 (10th Cir. 2013). He subsequently moved this court for authorization to challenge his sentence in a successive § 2255 action, but we denied him authorization. In re Baker, No. 13-3223 (10th Cir. Oct. 2, 2013) (unpublished).
On March 24, 2014, Mr. Baker filed the instant Motion for Appointment of Counsel, requesting such appointment because "counsel is needed to properly present" ten issues to the district court relating to the investigation and prosecution of his offense. Mot. for Appt. of Counsel at 2-4; R. Vol. 1 at 765. He further claimed he needed counsel to thoroughly investigate these issues, which he claimed affected his constitutional rights. The district court denied his motion in a written Memorandum and Order, stating as follows:
The court finds that Baker has demonstrated he is capable of articulating his claims adequately, so the interests of justice do not require appointing counsel for his additional challenges. In his motion, Baker specifically lays out the bases he intends to attack his conviction or sentence with and the facts supporting those bases. Further, Baker has filed numerous pro se motions, and although none have been granted, none were rejected on the basis of being incomprehensible or not adequately stated. Baker may face some legal barriers in his renewed attempt to attack his conviction or sentence, as his direct appeal and previous § 2255 motions have consistently failed. But the potential procedural barriers do not establish a basis for appointing counsel for Baker.
Mem. & Order at 2-3; R. Vol. 1 at 774-75. This appeal followed.
"The decision to appoint counsel is left to the sound discretion of the district court." Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001); Williams v. Meese, ...