UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

NICHOLAS LEVI OLSEN, Case No. 4:20-cv-00166-BLW Plaintiff, MEMORANDUM DECISION v. AND ORDER

UNITED STATES OF AMERICA,

Defendant.

INTRODUCTION Before the Court is pro se Petitioner Nicholas Levi Olsen’s Motion for Reconsideration and Request for Counsel. Dkt. 19. For the reasons explained below, the Court will deny both motions. BACKGROUND In December 2017, Mr. Olsen pled guilty to Count One of the Indictment charging him with possession with intent to distribute a controlled substance in violation of

(a)(1) and (b)(1)(A). See Crim. Dkt. 35. Mr. Olsen was sentenced to a term of imprisonment of 210 months and 5 years of supervised release. Judgment at 2-3, Crim. Dkt. 55. Mr. Olsen appealed his conviction on March 23, 2018. Crim. Dkt. 59. On December 19, 2018, the Ninth Circuit entered final judgment dismissing Mr. Olsen’s appeal. See Crim. Dkt. 80. The judgment became final on March 19,

2019. See Crim. Dkt. 80. In February 2021, the Court dismissed Mr. Olsen’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to

after finding that

equitable tolling did not save Mr. Olsen’s untimely motion. See Mem. Decision Order, Dkt. 17. In July 2021, Mr. Olsen filed this motion. Mr. Olsen asks the Court to “look back” and “reconsider” his sentence. Mot. Recons. ¶ 4, Dkt. 19. He asks the Court

to reduce his term of incarceration so that he can “get out with some hope that [he] could do something with [his] life.” Mot. Recons. ¶ 5, Dkt. 19. The Court broadly construes this as a request to reconsider the order dismissing Mr. Olsen’s petition

under

. Mem. Decision Order, Dkt. 17. Mr. Olsen also writes “in regards of seeking representation.” Mot. Recons. ¶ 1, Dkt. 19. He explains that although he has access to a prison law library, he does not know “what steps” to take in his case or the status of his filings. Mot. Recons. ¶

2, Dkt. 19. Mr. Olsen says that he has tried to contact his lawyers, who have not responded. Mot. Recons. ¶ 2, Dkt. 19. The Court broadly construes this as a request for the appointment of counsel. ANALYSIS A. Motion for Reconsideration The Federal Rules of Civil Procedure apply to habeas cases, such as this one,

to the extent that those rules are not inconsistent with applicable statutes or rules. Rule 12 of the Rules Governing Section 2255 Cases. A party may request reconsideration of a final judgment (1) by filing a motion to alter or amend the

judgment under Federal Rule of Civil Procedure Rule 59(e), or (2) by filing a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). Because Petitioner’s Motion was not filed within 28 days of final judgment, the Court will construe the Motion as made pursuant to Rule 60(b). See American

Ironworkers & Erectors, Inc. v. North American Construction Corp.,

, 898-99 (9th Cir. 2001). Under Rule 60(b), a court may grant a party relief from a final judgment for

the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; or (6) “any other reason that justifies relief.” Fed. R. Civ. P.

60(b). The only subsection applicable to Petitioner’s claims is subsection (b)(6). This last catch-all provision should only be used “sparingly as an equitable remedy to prevent manifest injustice.” Lal v. California,

(9th Cir. 2010) (cleaned up). To receive relief under Rule 60(b)(6), a party must demonstrate

“extraordinary circumstances which prevented or rendered him unable to prosecute his case.”

(cleaned up). A motion for relief from judgment must be brought “within a reasonable time.” Fed. R. Civ. P. 60(c)(1).

Mr. Olsen cannot receive relief under Rule 60(b) because he fails to meet any of the grounds cited in that Rule. His Motion is nothing more than a request that the Court revisit its prior conclusions. But those conclusions are sound—Mr. Olsen’s habeas petition is barred by the statute of limitations. Disagreement with

that decision is a matter for appeal, not reconsideration. Mr. Olsen has not carried his burden to show manifest injustice or any other basis for reconsideration. Accordingly, the Court will deny the Motion for Reconsideration.1

B. Request for Counsel Mr. Olsen requests the appointment of counsel. There is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson,

,

1 The Court does not have authority to reduce Mr. Olsen’s sentence as he requests. See United States v. Barragan-Mendoza,

(9th Cir. 1999) (“[D]istrict courts do not have ‘inherent authority’ to reconsider sentencing orders.”). But district courts do have authority to “modify a term of imprisonment” under

(c)(1)(A)(i). Mr. Olsen may pursue that route if he believes there are “extraordinary and compelling reasons” that warrant a reduction in his sentence. 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or an evidentiary hearing is required in

his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2255 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice.

(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner’s ability to articulate his claims in light of the complexity of the legal issues and his likelihood of success on the merits. See Weygandt v. Look,

(9th Cir. 1983).

The Court concludes that Petitioner does not qualify for appointment of counsel. As this Court has previously found, Mr. Olsen’s time to bring a habeas action has passed. Presently, neither discovery nor an evidentiary hearing is

needed. Therefore, the Court will deny Mr. Olsen’s motion to appoint counsel.

ORDER IT IS ORDERED that:

1. Plaintiff’s Motion to Reconsider (Dkt. 19) is DENIED. 2. Plaintiff’s Motion for Appointment of Counsel (Dkt. 19) is DENIED. DATED: September 28, 2021 Oe Wo SF B. Lynn Winmill Sich US. District Court Judge

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