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Ask Benicia Baker-Livors Your Own Question
Benicia Baker-Livors
Benicia Baker-Livors,
Category: Criminal Law
Satisfied Customers: 36
Experience:  Managing member at Family Law Group
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THIS QUESTION IS ONLY FOR FEDERAL ATTORNEYS: On October 20, 2008, I was sentenced to seven and a half years incarceration, three years supervised release, and $3.3M restitution for a guilty verdict on one count of 18 U.S.C. § 371 and two counts of 26 U.S.C.
§7212 by the USDC Eastern District of PA, “Philadelphia Court.” On February 5, 2014, I was released from Alderson Federal Prison Camp to a Residential Rehabilitation Center in Detroit in the Eastern District of Michigan, to which district Federal Bureau of
Prisons (“FBOP”) custody had been transferred. On August 5, 2014, I was released from FBOP custody and reported to the United States Probation Office for the Eastern District of Michigan to serve three years of supervised release. On or about October 20, 2014,
I filed a Petition to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, hereinafter “2255,” with the Philadelphia Court, as required by the statute, even though I live and work in the Eastern District of Michigan. On August 12, 2015, the
Philadelphia Court set an evidentiary hearing on part of my 2255 for October 13, 2015 at 11:00 a.m., in courtroom 7-B of the United States District Court for the Eastern District of Pennsylvania,***** Philadelphia, Pennsylvania. The distribution
list on the notice of the October 13, 2015 hearing issued by the Philadelphia Court listed only personnel in the United States Probation Office of the Eastern District of Pennsylvania, and not the Eastern District of Michigan. Over the course of a month, and
eventually working through my PO, the Philadelphia Court acknowledged it had transferred probation jurisdiction to Michigan, which was accepted on December 3, 2014. However, the Philadelphia Court denied my motion to transfer jurisdiction of the 2255 to Michigan
on September 30, 2015, without any reason. (NB: My co-defendant was released from FBOP custody to the Central District of California, to which the jurisdiction of his supervised release was transferred. On or about June 5, 2015, the Philadelphia Court sua
sponte transferred the jurisdiction of all outstanding motions, including his 2255, to the Central District of California.) Today, the Philadelphia Court, “on the record” by way of a voice mail left by the judge, denied my emergency motion for appointment
of counsel to represent me in the evidentiary hearing, and all other adversarial proceedings related to the 2255, again, without a reason, even though I have filed 2 applications to proceed in forma pauperis; stated its expectation that I appear for this hearing
via teleconference from Judge Steeh’s courtroom in Detroit; and said, “You can represent yourself.” QUESTION: What are my options?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Benicia Baker-Livors replied 1 year ago.

What part of your 2255 motion did the court set for an evidentiary hearing?

Customer: replied 1 year ago.
It doesn't matter what part it's an Evidentiary Hearing!!
Expert:  Benicia Baker-Livors replied 1 year ago.

Actually it does because an evidentiary hearing over whether you are indigent and need appointed counsel is different than an evidentiary hearing as to the substantive portions of your motion. Also, you can get an evidentiary hearing on your venue change and that is fairly straightforward as compared to the actual merits of your motion which can be tried by any district court once on file there.

Customer: replied 1 year ago.
That's the whole problem the district court in Philly won't give up Jurisdiction to Michigan to decide if I'm indigent which I am and is clearly factual but the Judge in Philly refuses to give Michigan Jurisdiction hence the question what do I do??? Michigan has Probation Jurisdiction NOT Philly. Which is why I'm asking what do I do??
Expert:  Benicia Baker-Livors replied 1 year ago.

So, I ask is the evidentiary hearing in Philadelphia ONLY whether or not you are indigent? Is that the only thing the Court set for hearing right now?

Expert:  Benicia Baker-Livors replied 1 year ago.

See Green v. US, where the 8th Circuit held in 2001 if the District Court sets a matters for an evidentiary hearing on anything in a 2255 motion and finds you to be indigent, you must get counsel. I believe this should help you.

Expert:  Benicia Baker-Livors replied 1 year ago.

If this was helpful, please rate my response. Thank you.

Customer: replied 1 year ago.
I appreciate the effort you are putting into this and am refocusing this effort. My original question was, "What are my options." You have mentioned an evidentiary hearing on indigency and evidentiary hearing on transfer of jurisdiction in any district court that ?? has the case?? that has personal jurisdiction over me?? -- I'm not clear on that one -- as well as providing me with an 8th Cir. case that stands for what I know to be true in the 3rd Cir. pursuant to Iasiello, that is, it is mandatory, and not discretionary, for the court to appoint counsel for an indigent petitioner when the court sets an evidentiary hearing in order to determine the merits of the 2255 claims, as in this situation. What is not clear by your various responses is WHAT CAN I DO??? I'm pro se. I'm indigent. I'm in no man's land with a judge who is hell bent on having me go through this evidentiary hearing without counsel and in her realm, and not my home district court. This judge has offered no case law or rationale for her summary denial of my motions for appointment of counsel, and the motion to transfer jurisdiction to my home district in Michigan. This is the most recent demonstration of this judge's hostility and animus towards me which I believe is prima facie evidence of her bias. The judge also has not called my claim of indigency into question. I filed an application to proceed in forma pauperis when I filed the 2255 in October 2014, and I filed an update application to proceed without paying costs, using the USDC Eastern District of MI form, with my emergency motion for appointment of counsel. These are made under penalty of perjury, and having spend 7 years locked up, I'm not going to make any false statements to anyone. I can't just let this train wreck happen. As I'm sure you know, the 2255 is a ONE SHOT deal and the final and last opportunity for justice to truly be served. Kindly provide recommendations of steps I can consider taking in order to avoid a disaster.
Expert:  Benicia Baker-Livors replied 1 year ago.

Here is what I have understood you are upset about happening in your case:

1) you are pro se. You don't want to be pro-se. You have asked for counsel and the court denied you counsel. I provided you a specific case that would support your NEW request for counsel that you should refile. Now that the judge has granted an evidentiary hearing on ANY issue at all, the law is clear you get counsel. I believe you were denied counsel previously BEFORE the judge granted you an evidentiary hearing. If so, that might make some sense and therefore you need to ask again. This time, state now that you have an evidentiary hearing your appointment is mandatory and you are being prejudiced without the assistance of counsel;

2) your last posting complained about personal jurisdiction where previously you discussed venue. These are VERY DIFFERENT legal concepts and it would take me 30 plus minutes to explain verbally. That being said, your court has jurisdiction over are merely asking the court to exercise its DISCRETION to move your 2255 to another district court. It has the DISCRETION to say yes or no. With discretionary rulings, you don't need to understand the court's reasons. Think of it like when your mom would tell you that you had to go to bed when you didn't think you should and you would ask why and she would say "Because I said so." Judicial discretion is mom's "because I said so" power.

3) I understand you keep trying to force the transfer to Michigan of the Pennsylvania case. Here is where I am a bit confused about the procedural posture of your case (and I just re-read question in case I missed it but I still can't find the information). I see you were convicted in both Michigan and Philadelphia. What I don't know is whether these charges were consolidated or if you appeared in each court. Under 28 USC Sec 2255, you must file your 2255 in the district court where you were sentenced. I know you have a hearing tomorrow in Philadelphia court.Ihaven't seen that you have filed anything in the Michigan court.

The Minnesota District Court also provided a very helpful guide to proceeding and preparing for a 2255 hearing.

You should read the link above. Page 8 addresses that you cannot challenge actions from two different courts in one 2255 motion. The documents also discusses how you must file the motion where you were convicted, not where you live or where you are incarcerated - which is why your motion to transfer will likely be denied.

There is no other information I can give you at this time without doing additional work. I can do additional work for you., if you are interested.

Customer: replied 1 year ago.
Sadly, you mistakingly understand the circumstances presented to in the ten point procedural history provided in advance of my one very simple question, "What are my options." First, I have only ONE conviction, as detailed in paragraph 1. There are no two convictions, no two jurisdictions of convictions, no need for consolidation, etc. Secondly, and as VERY CLEARLY STATED, my 2255 was filed in Philadlephia, with the court that sentenced me; that judge ordered AN EVIDENTIARY HEARING in AUGUST 2015. I first filed a motion with this court to transfer the jurisdiction to my home district, Eastern District of Michigan, that the court summarily denied. It was ONLY AFTER THIS DENIAL that I filed an emergency motion for appointment of counsel with the MICHIGAN court, which has jurisdiction over me in terms of PROBATION. (You clearly did not understand that I am currently serving the 36 month term of the supervised release portion of my criminal conviction). The MICHIGAN court transferred the motion to PHILADELPHIA, being the court of original jurisdiction. I amended my prayer for relief to ask for the court to APPOINT COUNSEL pursuant to 18 USC 3006A to represent me at the EVIDENTIARY HEARING, AND, ALL ADVERSARIAL PROCEEDINGS related to my 2255. The PHILADELPHIA court summarily denied this motion and commanded my presence at the 10/13 EVIDENTIARY HEARING where the court says I can "certainly represent yourself." I cited Iasiello as the THIRD CIRCUIT case that stands for the same mandatory appointment of counsel standard as your Minnesota (8th Cir.) case. You have not provided one iota of information that I do not already know. Rather, some of your comments have confused the issues and led to me asking about what court to file what motion in, You are going down bunny trails that are irrelevant and offer to research in personam jurisdiction for another $100. Not only will I not accept this offer of services, I will not pay for your totally unhelpful response to my very simple question -- What are my options -- that has yet to be answered.