Case 1:17-cr-00487-KMW Document 315 Filed 04/21/21 Page 1 of 2
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`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
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`DOC #: __________________
`DATE FILED: __4/21/21__________
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`17-CR-487 (KMW)
`ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`UNITED STATES OF AMERICA,
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`ARIEL ACOSTA,
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`Defendant.
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`KIMBA M. WOOD, United States District Judge:
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`-against-
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`On April 15, 2021, Defendant Ariel Acosta filed a motion seeking a 120-day extension of
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`the time to file a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2255. (ECF No.
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`314.) Because the Second Circuit granted the Government’s motion to dismiss Acosta’s appeal
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`of his conviction on May 22, 2020, Acosta states that the deadline for a Section 2255 petition is
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`May 22, 2021. (Id. at 1; see ECF No. 291; 28 U.S.C. § 2255(f).) Acosta also seeks
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`appointment of counsel in connection with his potential petition. (Mot. at 1.)
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`Acosta’s request for an extension must be denied. The Second Circuit has held that a
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`district court may grant an extension to file a motion pursuant to Section 2255 only if the movant
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`“requests the extension upon or after filing an actual section 2255 motion.” Green v. United
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`States, 260 F.3d 78, 82-83 (2d Cir. 2001); see also United States v. Leon, 203 F.3d 162, 164 (2d
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`Cir. 2000) (per curiam) (“[A] federal court lacks jurisdiction to consider the timeliness of a §
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`2255 petition until a petition is actually filed.”). The Court cannot construe Acosta’s motion as
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`an “actual” Section 2255 petition because it does not articulate any factual or legal basis for relief
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`pursuant to Section 2255. See Green, 260 F.3d at 84. In such circumstances, courts in this
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`district have declined requests to extend the available time for filing a Section 2255 petition.
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`See Cromitie v. United States, 2017 WL 1383982, at *4 (S.D.N.Y. Apr. 7, 2017) (McMahon, J.)
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`Case 1:17-cr-00487-KMW Document 315 Filed 04/21/21 Page 2 of 2
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`(collecting cases).
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`The Court notes that Acosta has requested an extension because the “modified movement
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`/ lockdown status” imposed by the Bureau of Prisons during the COVID-19 pandemic has
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`affected, among other things, his ability to conduct legal research. (Mot. at 1.) If Acosta
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`wishes to pursue relief pursuant to Section 2255, he must file a petition that contains allegations
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`supporting such a claim. With that petition, however, he also may seek additional time to file a
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`supplemental memorandum providing further support for his petition.
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`Acosta’s request for appointment of counsel also is denied. The Criminal Justice Act
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`allows courts to appoint counsel if “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2).
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`The decision to appoint counsel “rest[s] in the discretion of the district court,” and courts
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`consider, among other factors, the apparent merits of the motion. See United States v. Reddick,
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`53 F.3d 462, 464-65, 465 n.2 (2d Cir. 1995). Acosta has expressed his intention to file a
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`Section 2255 petition, but has not yet made any factual allegations or described the bases on
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`which he intends to seek relief. (See Mot. at 1.) Accordingly, the Court denies the request for
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`appointment of counsel, without prejudice. Acosta may renew his request upon the submission
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`of a Section 2255 petition.
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`CONCLUSION
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`For the reasons set forth above, Acosta’s motion for 1) an extension of the time to file a
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`Section 2255 petition and 2) appointment of counsel in connection with the potential petition is
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`DENIED. The Clerk of Court is respectfully directed to mail a copy of this Order to Acosta.
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`SO ORDERED.
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`Dated: New York, New York
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`April 21, 2021
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`/s/ Kimba M. Wood
`KIMBA M. WOOD
`United States District Judge
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