United States v. Nichols

United States Court of Appeals,

Fifth Circuit.

No. 93-8534.

UNITED STATES of America, Plaintiff-Appellee,

v.

William Phillip NICHOLS, Defendant-Appellant.

Aug. 25, 1994.

Appeal from the United States District Court for the Western
District of Texas.

Before POLITZ, Chief Judge and DUHÉ and BARKSDALE, Circuit Judges.

PER CURIAM:

Appellant, William Nichols, appeals the district court's

denial of his motions to correct his sentence under 28 U.S.C. §

2255 and for appointment of counsel under 18 U.S.C. §

3006A(a)(2)(B). We vacate and remand in part and affirm in part.

BACKGROUND

Appellant was convicted in February 1992 of three counts of

distributing crack cocaine within a thousand feet of a public

school in violation of 21 U.S.C. §§ 841(a)(1), 860(a). At

sentencing, the district court found Appellant a career felon based

on two state drug convictions. Accordingly, the district court

enhanced Appellant's sentence to 262 months imprisonment from a

sentencing range of 41 to 51 months.

On March 10, 1993, the Texas Court of Criminal Appeals vacated

one of Appellant's state convictions on the ground that his guilty

plea was involuntary because the state withheld exculpatory

evidence. Nichols then filed a motion under 28 U.S.C. § 2255 to

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vacate, set aside, or correct his federal sentence on the ground

that he could no longer be considered a career offender since his

state conviction had been vacated. Appellant also filed a motion

for appointment of counsel under 18 U.S.C. § 3006A(a)(2)(B). The

district court denied both motions, and Appellant appeals.

DISCUSSION

I.

Appellant first contends that § 2255 relief is appropriate

when a state conviction that formed the basis of career offender

status is invalidated after the federal sentencing. In the recent

case, Custis v. United States, --- U.S. ----, 114 S.Ct. 1732, 128

L.Ed.2d 517 (1994), the Supreme Court stated in dicta that a

defendant who was successful in attacking his state conviction in

state court may then apply for reopening of any federal sentence

enhanced by that state sentence. Id. at ----, 114 S.Ct. at 1739.

At oral argument, the Government conceded that, in light of Custis,

Appellant should get the benefit of the fact that he subsequently

had the previous state conviction overturned. Accordingly, we

vacate and remand on the basis of the Government's concession.

II.

Appellant next argues that the district court abused its

discretion by refusing to appoint counsel. Whether to appoint

counsel to represent a defendant in a § 2255 proceeding is

committed to the sound discretion of the district court. Ford v.

United States, 363 F.2d 437 (5th Cir.1966). No evidentiary hearing

was necessary in this case, and at the time he requested counsel,

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Appellant merely alleged that "the interest of justice" required

that counsel be appointed. We conclude that the district court did

not abuse its discretion in denying Appellant's motion to appoint

counsel.

CONCLUSION

For the foregoing reasons, we VACATE and REMAND in part and

AFFIRM in part.

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