Ajaj v. United States

i ce pete cts, MEMO ENDORSLD [Dee eIWETAy UNITED STATES DISTRICT COURT {\ SOUTHERN DISTRICT OF NEW YORK ae OCT 23 7026 MOHAMMAD AJAM, D R 0 S E OE | a rl - OFFICE STATES OF AMERICA. SO a □ CASE No. 16-cv-5031 (LAK) PRO SE MOTION FOR AN APPOINTMENT OF COUNSEL TO REPRESENT HIM IN HIS PENDING &2255 TO INVESTIGATE AND ADVANCE OTHER GROUNDS FOR RELIEF, TO PREPARE AND FILE A MEANINGFUL TO ANY OBJECTIONS BY THE GOVERNMENT TO DISMISS COUNT NINE AND TO SEEK A FULL DUE TO DISMISSAL OF COUNT TEN AND FOR THE INTEREST OF □□□□□□□□□□□□□□□□□□□□□□□□□ emis A i a a □□ HONORABLE JUDGE OF THIS COURT: NOW, the Movant Ahmad Mohammad Ajaj, pro se, and respectfully request that this Honorable Court appoints to represent him in the above mentioned case for the following reasons: vant is a pro se prisoner, with a limited knowledge of criminal law and subjected to COVID-19 restrictions that limits to the Electronic Law Library to conduct a meaningful legal research of other legal claims that might entitles him ef fram the Court. are approximately 200 prisoners at FCC-Allenwood who contracted COVID-19. Movant only have one lung due lung suffering from asthma, apnea, heart problems, history of exposure to TB and pnemua, and other chronic health and if he contracts COVID-19, he will not be able not work in this nor be able to file any response to objections or filed by the government inthis case or to communicate with the Court at all. will be able to investigate and advance further legal arguments for relief such as Section 117 (a),(b) does not a crime of violence, to investigate and advance argument thal the application of & 924 (c) violates the Eighth especially against the Movant, who was in prison before, during and after WTC Bombing and no was presented at his trial shows that he even had any advance knowledge of this horrible crime, and to investigate argument that Movant's &924(c) conviction shoald be vamsieBbecndst ther is no ataoes he used or carried as charged in the indictment. awyer will be able to clarify and strenghth the pending pro se arguments advanced by the Movant's in his pending reply Memorandum Endorsement Ajai v United States, 16-cv-5031, 93-cr-180 (LAK) Movant seeks appointment of counsel (1) on his pending Section 2255 motion, (2) to investigate and advance other grounds for relief, (3) to respond to any objections by the government to dismissal of count 9, and (4) to seek a full resentencing in light of the dismissal of count 10.

Standards Governing the Application for Appointment of Counsel As this Court wrote in denying movant’s most recent motion for appointment of counsel: “There is no Sixth Amendment right to counsel in habeas corpus proceedings. Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004) (citing Coleman v. Thompson, 501 U.S. 722, 752-53 (1991). This includes the right to counsel of choice. United States Sec. and Exch.

Comm'n. v. Hlarramendi, 732 F .App'x 10, 14 (2d Cir. 2018). Nonetheless, under the Criminal Justice Act, the Court may appoint counsel for ‘any financially eligible person who is seeking reliefunder . . . section 2255 of title 28' if it ‘determines that the interests of justice so require.’

18 U.S.C. § 3006A(a)(2)(B). The key word is ‘may.’ Appointment lies within the discretion of the district court. ‘The likelihood that a movant's or prospective movant's claims have merit is central to the determination whether the interests of justice warrant the appointment of counsel at public expense.’ United States v. El-Hags, No. $7 98-cr-1023 (LAK), 2016 WL 1178817, at *2 (S.D.N.Y. Mar. 21, 2016) (footnote omitted). Insofar as movant seeks another lawyer to represent him concerning Johnson-Davis issues, my decision of even date shows that there is no substantial likelihood of success. Insofar as movant seeks another lawyer to investigate or advance other, unspecified possible arguments, the Court is left without sufficient information to make an informed judgment that any such claims haves any likely merit.” United States v. Ajaj, 93-cr-0180 (LAK), Dkt. 958, at 1-2 (S.D.N.Y. June 24, 2020).

The Merits Movant has shown no substantial likelihood of success on his pending 2255 motion, which is dispositive with respect to his points 1, 3 and 4. With respect to point 4, Movant is essentially identically situated with defendant Ayyad, whose counsel (Federal Defenders) unsuccessfully sought a full resentencing, Ayyad v. United States, No. 93-cr-0180 (LAK), 2020 WL 5018163 (S.D.N.Y. Aug. 24, 2020), which of course bodes ill for this movant. Moreover, this Court may issue a certificate of appealability only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The assertion that movant should be granted a full resentencing, especially on the facts of this case, does not constitute such a showing.

Finally, it would be inappropriate to appoint counsel now “to investigate and advance other claims for relief” and premature to do so to respond to any objections the government “may” raise.

Conclusion The motion (93-cr-0180 Dkt 987, 16-cv-5031 Dkt 30) is denied.

SO ORDERED.

Dated: November 29, 2020 Lewis A. Kaplan United States District Judge