Scherrer v . United States 08-CV-002-SM 04/28/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Phillip S . Scherrer

v. Civil N o . 08-cv-2-SM Opinion N o .

United States of America

O R D E R

Petitioner seeks relief from his conviction and sentence

under

, claiming, among other things, that his

defense counsel provided ineffective assistance and that his

guilty plea was not competently offered because, at the time, he

was suffering from an overdose of a number of prescription drugs

administered at the jail in which he was being detained.

Essentially, petitioner asserts that he was not capable of

understanding the nature of the plea proceedings, or of

meaningfully participating in those proceedings, or communicating

effectively with his counsel. Petitioner also says that counsel

had no basis upon which to assure the court that he was capable

of understanding the nature of the proceedings, and, indeed,

claims that he was not only incapable of competently

participating in the plea colloquy, but was also incompetent

during plea negotiations, and had no understanding of the terms

of the resulting negotiated agreement. Having reviewed the petition, exhibits, and record, it is

apparent that a hearing is required as petitioner’s allegations,

if true, would entitle him to relief. Petitioner has submitted

medical records, albeit seemingly incomplete, that facially

support his claim that he was taking several prescription

medications, and the court cannot, based on the record as it

stands, find that his improvident plea claims are “so evanescent

or bereft of detail that they cannot reasonably be investigated,”

or that they amount to “threadbare allusions.” David v. United

States,

(1st Cir. 1998).

Accordingly, the clerk shall appoint counsel to represent

the petitioner and schedule a hearing on the petition.

SO ORDERED.

Steven J. __McAuliffe Chief Judge

April 28, 2008

cc: Phillip S. Scherrer, pro se Aixa Maldonado-Quinones, AUSA

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