Brown v. Rogers, et al, No. 1:1999cv00549 - Document 175 (S.D. Ohio 2018)
Court Description: ORDER denying 169 Motion requesting to expand the scope of habeas co-counsel's appointment to encompass the state court litigation. Signed by Judge Algenon L. Marbley on 10/31/2018. (cw)
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Brown v. Rogers, et al Doc. 175 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION DEBRA DENISE BROWN, Petitioner, Case No. I:99cv549 v. JUDGE ALGENON L. MARBLEY Magistrate Judge Elizabeth P. Deavers WANZA JACKSON, et al. Respondents. OPINION AND ORDER Petitioner, a prisoner sentenced to death by the State of Indiana but incarcerated and serving a life sentence in the Stateof Ohio, has pending before this Court a habeas corpusaction pursuant to 28 U.S.C. § 2254. This matter is before the Court on Petitioner's renewed motion requesting authorization forher habeas co-counsel from the Office of the Federal Public Defender to assist in her statecourtAtkins litigation challenging her eligibility to be executed on the basisof Intellectual Disability. (ECF No. 169.) Respondent did not file a memorandum in opposition. ThisCourt originally appointed counsel to represent Petitioner in these habeas proceedings pursuant to 21 U.S.C. § 848(q)(4)(B), which is now recodified at 18 U.S.C. § 3599(a)(2). On February 9,1999, the Court appointed Attorneys Ken Murray and Dennis McNamara to serve as counsel for Petitioner. (Doc. #11.) On September 24,2012, the Court permitted Attorney McNamarato withdraw from the case and appointed Assistant Federal Public Defender Carol Wright to serve as co-counsel. (ECF No. 74.) Ina notice filed onAugust 1,2018, Attorney Wright gave notice ofher withdrawal as co-counsel, stating that Attorney Ken Murray will remain as Lead Counsel and Attorneys Justin Thompson and Adam Rusnak from the Federal Public Defender's Office will remain as co-counsel. (ECF No. 171, at PAGEID # 17444.) 1 Dockets.Justia.com On March 27,2017, this Court granted Petitioner's unopposed motion for leave to file a Second Amended Petition, and Petitioner's motion to stay these proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005), in order for Petitioner to return to the Indiana state courts to exhaust a claim that she is ineligible for the death penalty on the basis of Intellectual Disability pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. 701 (2014). (ECF No. 141.) In a motion filed April 20,2017, Petitioner asked this Court to appoint her federal habeas counsel to represent her in those state-court proceedings. (ECF No. 145.) The Court denied Petitioner's request, subject to reconsideration, on the basis that the Court lacked authority to expand the scopeof habeas counsel's representation if the statecourts provide Petitioner with counsel. (ECF No. 158.) In her renewed motion, Petitioner states that the Indiana Supreme Court can only appoint the Office of the Indiana Pubic Defender ("IPD") to represent individuals filing a successor or second petition for post-conviction reliefin capital cases. (ECFNo. 169, at PAGEID # 17429.) Here, the IPD is unable to represent Petitioner because it previously represented her co-defendant, AltonColeman. (Id.) According to Petitioner, the IPD has asked Kenneth Murray, Petitioner's longtime attorney and lead counsel in this habeas case, to represent Petitioner in the state-court proceedings. Petitioner notes that "[i]nsubsequent communications with Attorney Murray, the IPD informed him that although it maybe able to pay for Brown's four experts, a mitigation specialist, and a paralegal, it could not provide funding for any other attorneys toassist Attorney Murray in litigating Brown's case." (Id. at PAGEID # 17430.) According to Petitioner, the state court Atkins litigation will require extensive time and effortto reviewrecords, meet with experts, prepare witnesses, draft and submit pleadings, and litigate the proceedings in state court. Petitioner asserts: 2 "[L]ay witnesses located in Illinois and Indiana will need to be interviewed and prepared to testify. Any post-conviction proceedings, if granted, will be held in Lake County, Indiana, while Attorney Murray resides in Phoenix, Arizona, and the historic files in Brown's case are maintained by the Federal Public Defender for the Southern District of Ohio in Columbus, Ohio. Given the extensive work required to prepare for and litigate Brown's post-conviction case, the wide geographic spread of her witnesses and materials, the extensive travel involved, and the man-hours necessary to effectively litigate an Atkins claim for the first time in state court, representation by Attorney Murray alone is insufficient. (Id. at PAGEID # 17430.) Based on this expected workload, Attorney Murray seeks authorization for co-counsel from the Federal Public Defender's Office, Southern District ofOhio, to assist him in the state court proceedings. (Id. at PAGEID # 17430-31.) The issue before the Court is whether 18 U.S.C. § 3599 authorizes the expansion of habeas counsel's appointment so they may represent Petitioner in a state-court Atkins postconviction proceeding. Section 3599(a)(2) authorizes the Court to appoint "one or more attorneys" to represent a defendant attacking a state sentence of death in federal habeas proceedings, and § 3599(e) describes the scope of that appointment as follows: Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ ofcertiorari to the Supreme Courtof the United States, and all available post-conviction process, togetherwith applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant. 18 U.S.C. § 3599(e). In Harbison v. Bell, 556 U.S. 180 (2009), the Supreme Court held that § 3599(e)'s reference to "proceedings for executive or other clemency as may be available to thedefendant" encompasses state clemency proceedings. The Supreme Court rejected arguments that thestatute was intended to furnish representation in onlyfederal proceedings but made clearthat counsel's 3 representation pursuant to the statute includes only those proceedings transpiring "subsequent" to his or her appointment. Id. at 188. With respect to state postconviction proceedings, the Court noted that "[petitioners must exhaust their claims in state court before seeking federal habeas relief, and the fact that state postconviction litigation sometimes follows the initiation of federal habeas because a petitioner failed to exhaust does not change the order of proceedings contemplated by the statute." Id. at 189-90 (internal citation omitted). However, the Court offered an exception to its holding, and observed in a footnote that "a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim [in the state courts] in the course of her federal habeas representation." Id. at 190, n.7. In Irick v. Bell, 636 F.3d 289 (6th Cir. 2009), the Sixth Circuit applied Harbison to deny a habeas petitioner's request to expand his counsel's representation to include a state postconviction proceeding where state law provided for the appointment of counsel. In so doing, the Sixth Circuit affirmed a Tennessee district court's decision authorizing habeas counsel to represent the petitioner in his clemency proceedings, but denying his requestfor counsel to represent him in his postconviction and competency to be executed proceedings in statecourt. Id. at 291. TheCourt determined that "even if § 3599 would otherwise apply to Irick's state post-conviction proceedings, he would not beeligible for federal funding because state law affords him adequate representation." Id. Seealso Conway v. Houk, No. 3:07cv345 (S.D. Ohio July 8,2015) (ECF No. 219, PAGEID # 15605) (finding in lightof Harbison and Irick, a federal court may "exercise itsdiscretion in appointing federal habeas counsel to represent their client in state post-conviction proceedings when the state petition raises issues that are or will be pleaded in a habeas petition so long asthose issues are cognizable inhabeas corpus and have notbeen previously submitted tothe state court, unless the state court itself provides for representation"). 4 In this Court's Opinion and Order of September 18,2017, denying Petitioner's request to expand the scopeof habeas counsel's appointment, the Court cited ChiefJudge Edmund Sargus's decision in Hill v. Mitchell, No. I:98cv452,2009 WL 2898812 (S.D. Ohio Sept. 4,2009), which was cited approvingly in Irick. In Hill, the Court was presented with a request similar to Petitioner's in this case - namely, whether the petitioner was entitled to an expansion of habeas counsel's representation so that counsel could return to theOhio state courts to pursue Atkins postconviction proceedings. In that case, the court denied the petitioner's request because the State ofOhio provides a statutory right tocounsel inan Atkins postconviction proceeding, pursuant to § 2953.21 ofthe Ohio Revised Code. Specifically, Chief Judge Sargus held: ThisCourtcannot utilize § 3599(e) to authorize federal habeas counsel to represent Petitioner in any state-court Atkins proceeding because state law already provides for the appointment of counsel for an Atkins hearing. Section 3599 limits those eligible for the appointment of federally funded counsel to death-sentenced defendants whoare or become financially unable to obtain adequate representation. As this Court noted earlier, in laying out the factual and procedural history, the Supreme Court in Harbison specifically noted that Tennessee state law did not authorize the appointment of state public defenders for the purpose of pursuing state clemency. Subsequently in its decision, the Supreme Court stated more forcefully that 'subsection (a)(2) provides for counsel only when a state petitioner is unable to obtain adequate representation.' Hill, 2009 WL 2898812, at *5 (internal citation omitted). In the instant matter, and atthe time Petitioner first filed toexpand the scope ofhabeas counsel's appointment, the extent to which Petitioner would be guaranteed counsel under Indiana law to pursue apostconviction Atkins claim was not as apparent as the Ohio scheme at issue in Hill. This Court denied Petitioner's request, subject to reconsideration at alater date, ifitbecame apparent that the State of Indiana would not provide Petitioner with "adequate" counsel. (ECF No. 158, at PAGEID #17395.) In the renewed motion, Petitioner seizes upon this Court's use of the word "adequate", arguing that "[a]s this court has recognized, if state law does not provide 5 adequate counsel, then this Court is authorized to expand the representation provided by Brown's assistant federal defenders." (ECF No. 169, at PAGEID # 17431.) Petitioner contends that "[t]o ask Attorney Murray to represent Brown alone throughout her Atkins proceedings, unaided by any co-counsel, is to deny Brown adequate and necessary representation at this most critical stage in the post-conviction process." (Id. at PAGEID U17432.) In the context of reviewing a request for the expansion of federal habeas counsel's appointment, this Court docs not interpret "adequate" as necessitating quantity, but rather asa requirement of competency and knowledge concerning death penalty litigation. Mere, it is apparent that the state courts, through the Indiana Public Defender's Office, have taken necessary steps to ensure that Petitioner has highly qualified counsel to represent her inthe state court Atkins proceedings. Arrangements have been made for Attorney Murray, Petitioner's longtime habeas counsel, to represent her before the Indiana state courts, ensuring continuity of counsel and familiarity with the case. Furthermore, additional arrangements have been made for Petitioner and Mr. Murray to receive the assistance of a paralegal, four experts and a mitigation specialist. (ECF No. 169, at PAGEID # 17430.) While it may prove beneficial for Petitioner to have the assistance of multiple attorneys, this Court simply cannot conclude that the state courts have not provided Petitioner with adequate representation. Accordingly, the Court DENIES Petitioner's request to expand the scope ofhabeas co-counsel's appointment to encompass the state court litigation. (ECF No. 169.) IT IS SO ORDERED. ALGENQN L. MAftBLET United States District Judge patp: Dr-ir. 51. z&iv'
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