Ray v. Alabama Department of Corrections et al

Filing 51

Order regarding CJA vouchers submitted by petitioner's counsel. Counsel are ordered to prepare and submit new CJA30 voucher forms, as set out. Signed by District Judge William H. Steele on 4/12/2019. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
DOMINEQUE RAY,
Petitioner,
v.
KIM THOMAS, Commissioner, Alabama
Department of Corrections, et al.,
Respondents.

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CIVIL ACTION 11-0543-WS-N

ORDER
This long-closed death penalty habeas matter comes before the Court on more than
$450,000 in CJA vouchers for payment recently submitted by petitioner’s counsel of record for
approval pursuant to 18 U.S.C. § 3599.
To understand the reasons for and the conclusions reached in this Order, it is vital to
review the procedural history of the case. On September 19, 2011, petitioner, Domineque Ray,
then an inmate on Alabama’s death row for the murder of Tiffany Harville, filed an extensive
147-page Petition for Writ of Habeas Corpus by Prisoner in State Custody under Death Sentence,
pursuant to 28 U.S.C. § 2254. In that endeavor, Ray was represented on a pro bono basis by a
team of lawyers from the Indiana law firm of Plews Shadley Racher & Braun (hereinafter the
“Firm”).1 As of September 2011, the Firm had been representing Ray pro bono for many years,
having commenced the representation back in February 2003 through the American Bar
Association’s Death Penalty Representation Project. Pursuant to that arrangement, the Firm had
served as Ray’s counsel, free of charge and without payment, throughout all Alabama state
postconviction proceedings. To the Court’s knowledge, the Firm had never objected to any court
1

In the undersigned’s experience, such an arrangement is entirely commonplace in
capital habeas matters litigated in this District Court. Indeed, with few exceptions, death penalty
§ 2254 petitioners are normally represented by out-of-state attorneys affiliated with large civil
law firms, who perform the postconviction legal work without compensation.

at any level that such representation posed a hardship or that the Firm was unwilling to continue
representing Ray without compensation indefinitely through the conclusion of his legal
challenges to his conviction, death sentence and execution.
In connection with the filing of the § 2254 Petition, four attorneys from the Firm
promptly filed motions for admission pro hac vice, all of which were granted in the ordinary
course of business. (See docs. 2-7.) As of September 2011, none of these attorneys had notified
the Court of any anticipated change to their pro bono representation of Ray, much less suggested
that they would refuse to serve as his counsel of record in the § 2254 matter without
compensation. Between September 2011 and May 2012, the § 2254 proceedings moved forward
in the ordinary course. The State filed an Answer (doc. 15) to Ray’s § 2254 Petition on January
26, 2012, as well as the indexed record of state-court proceedings. Petitioner requested and
received leave to file a merits brief in February 2012. (See doc. 21.)
On April 12, 2012, apropos of nothing, Ray (by and through counsel of record) filed a
Motion to Proceed In Forma Pauperis (doc. 24) and an “Unopposed Motion for Appointment of
Counsel” (doc. 25). The IFP Motion was supplemented by order of the Court on May 1, 2012
(see doc. 27), at which time both motions were taken under submission. The Motion for
Appointment of Counsel was curious because this Court had never seen such a motion filed in a
death penalty habeas case before, particularly by a firm that had a long-term pro bono
relationship with the death-row petitioner. Even more confusing and unorthodox was the
Motion’s timing, inasmuch as the Firm delayed filing it until some seven months into the
lifespan of the § 2254 proceedings. Frankly, it was entirely unclear to this Court what counsel
were asking for or why they were asking for it. The Motion for Appointment of Counsel
included multiple statements touting the Firm’s longstanding pro bono arrangement in the Ray
representation, and lacked any indication that the Firm needed, expected or wanted relief from
that arrangement.2 Conspicuously absent from the Motion for Appointment was any express
2

For example, the Motion stated that Attorney Racher of the Firm “has represented
Mr. Ray in all postconviction proceedings before Alabama state courts since [February 2003].
He is currently representing Mr. Ray without compensation.” (Doc. 25, ¶ 3.) The Motion went
on to identify three other Firm attorneys who have been involved in Ray’s representation longterm, and indicated that they had “provided Mr. Ray with consistent representation while
accommodating the demands of their paying clients. … They will continue to divide the
workload in a manner that provides consistent and efficient representation to Mr. Ray.” (Id., ¶
(Continued)
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statement that the Firm’s objective in filing the Motion was to be compensated on an hourly
basis by federal funds through the conclusion of the representation. Indeed, the Motion was
entirely silent on the subject of payment.
In reviewing the Motion for Appointment (which, again, was filed and considered handin-hand with an IFP Motion), the Court did not appreciate that the Firm intended to bill the
federal government on an hourly basis for all legal services performed from that day forward
until Ray’s execution by the State of Alabama. In the undersigned’s experience, no pro bono
death penalty habeas counsel appearing in this District Court (before this Court or any other
District Judge) has ever requested such a payment arrangement; rather, the uniform practice has
been for civil law firms representing the § 2254 petitioner pro bono to continue to do so
throughout the federal habeas proceedings and beyond. Moreover, the information before the
Court was that the Firm had been representing Ray without compensation for more than nine
years. Indeed, the Firm had represented Ray pro bono throughout the drafting and filing of the §
2254 Petition and for the first seven months of these federal habeas proceedings. There was no
inkling in the Motion that the Firm was unwilling or unable to continue doing so on a goingforward basis. The face of the Motion itself suggested that the appointment would not alter the
status quo or the Firm’s activities or arrangements in representing Ray. For aught that appeared
in the Motion for Appointment, this request was simply a perfunctory, unopposed formality. The
Court treated it as such, and granted the Motion via Order (doc. 28) entered on May 8, 2012.
Nothing in the May 8 Order reflected any understanding or recognition by the Court that the
Firm was going to bill the federal government by the hour for legal services performed on Ray’s
behalf from that date until his execution nearly seven years later.3

4.) The Motion touted the training and assistance counsel had received from “a private nonprofit
organization that provides legal representation to indigent defendants and prisoners,” and
expressed counsel’s intent to “continue to combine these resources with his in-depth, nine-year
experience with Mr. Ray’s case.” (Id., ¶ 5.)
3

Had the Court surmised that the Firm sought compensation pursuant to 18 U.S.C.
§ 3599(g) from that moment forward, the undersigned certainly would have made proper
allowance for that fact in the May 8 Order. At a minimum, the Court would have required the
Firm to submit a budget for these § 2254 proceedings and beyond; moreover, the Court would
have taken an active role in monitoring the Firm’s efforts and fixing budgetary parameters and
boundaries for each phase of the legal work to be performed thereafter. The May 8 Order lacks
(Continued)
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Ray’s § 2254 Petition was not successful. On September 27, 2013, the undersigned
entered an Order (doc. 37) and Judgment (doc. 38) denying the Petition, as amended, in its
entirety. On November 12, 2013, this Court denied Ray’s motion to alter or amend judgment
pursuant to Rule 59(e), Fed.R.Civ.P. On February 29, 2016, the Eleventh Circuit Court of
Appeals issued a Mandate (doc. 49) affirming the denial of Ray’s habeas petition. The United
States Supreme Court denied Ray’s petition for writ of certiorari on October 31, 2016 and denied
rehearing on January 23, 2017, at which point these § 2254 proceedings were fully and finally
concluded. For the next two years, the Firm continued to represent Ray, engaging in numerous
(ultimately unavailing) legal maneuvers to halt the execution and to allow Ray’s Muslim
spiritual advisor to be present in the death chamber with him. The State of Alabama executed
Domineque Ray on February 7, 2019.
Following the denial of Ray’s Rule 59(e) motion in November 2013, this Court had no
contact or interaction with the Firm in connection with the Ray representation. At no time did
the Firm notify the Court that it was continuing to represent Ray, that it expected to be paid by
the federal government at an hourly rate for that representation, or that it anticipated accruing
hundreds of thousands of dollars in additional legal fees on Ray’s behalf after the conclusion of
his § 2254 proceedings. Approximately two weeks ago, the Firm submitted vouchers to the
Clerk of Court, seeking payment in the amount of $456,708.03 for three attorneys’ time (plus
expenses) on the Ray matter.4 The sole basis for that payment request is the May 8, 2012 Order
granting the Unopposed Motion for Appointment of Counsel.
Had that Motion included any statement that counsel’s purpose in filing it was to secure
hourly compensation from the federal government for the duration of the Firm’s representation
of Ray, the Court would have denied it. Here is why: By statute, a § 2254 petitioner seeking to
vacate or set aside a death sentence is entitled to appointment of compensated counsel only if he
“is or becomes financially unable to obtain adequate representation.” 18 U.S.C. § 3599(a)(2).

any such provisions because the undersigned never appreciated that this is what the Firm was
asking. At no time then or later did the Firm disclose any further information to the Court about
its intentions or the purposes of requesting the May 8 Order.
4

The breakdown of those vouchers is as follows: $135,171.13 for attorney Racher,
$164,863.30 for attorney Tatum, and $156,673.60 for attorney Willard.

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Simply put, no showing was ever made that Ray was or had become financially unable to obtain
adequate representation in connection with his habeas petition. To the contrary, the information
before the Court was that the Firm had been representing Ray in state post-conviction
proceedings (and for the first eight months of the § 2254 proceedings) for more than nine years,
notwithstanding his indigence. The Firm – which was unquestionably providing Ray with
adequate representation – never indicated at any time that it was unwilling or unable to continue
representing Ray on a pro bono basis for the remainder of the § 2254 proceedings. Instead, the
Motion for Appointment of Counsel touted the Firm’s long track record of representing Ray
without compensation and of accommodating Ray’s needs alongside those of their paying
clients, as well as their expectation of continuing to combine available resources from a
nonprofit organization that provides legal representation to indigent defendants with their own
experience in representing Ray for nine years in postconviction proceedings. From these facts,
the conclusion is clear: Ray’s financial condition in no way impaired his ability to obtain
adequate representation in the federal habeas matter. As such, he was not entitled to
appointment of paid counsel pursuant to the provisions of 18 U.S.C. § 3599(a)(2). Vacatur of the
May 8, 2012 Order would be entirely appropriate given these circumstances.
Even if the Firm had made a sufficient showing that Ray was “financially unable to
obtain adequate representation” in his § 2254 proceedings (which it did not and could not,
because the Firm had already been representing Ray adequately in the § 2254 matter for many
months, and in state Rule 32 proceedings for many years before that, notwithstanding Ray’s
financial constraints), the May 8, 2012 Order would properly be rescinded as the product of
obvious confusion and a misunderstanding between the Court and counsel. Again, the Firm
never stated its intent to cease providing legal services for Ray on a pro bono basis and never
informed the Court that the purpose of the Motion for Appointment of Counsel was to secure
hourly compensation for Ray’s counsel from that day forward until the State of Alabama
executed Ray seven years later. The Court would not have rubber-stamped that Motion via a
perfunctory Order had it so understood. The Court certainly would have investigated why
counsel were abruptly asking for a change in the nature of their representation of Ray so many
years into their pro bono arrangement. The Court would not have approved three lawyers to
represent Ray in these circumstances. The Court absolutely would have required counsel to
submit a budget (rather than affording them carte blanche to spend whatever they wished) and

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would have held them accountable on an ongoing basis to avoid excessive spending and waste of
federal funds. The Court acted in the manner it did because it misunderstood the Firm’s request.
That misunderstanding resulted in large part from the Motion’s lack of clarity. To be sure, the
Motion did cite (without comment) 18 U.S.C. § 3599. But in this Court’s long experience with
death penalty habeas petitioners being represented by large-firm civil attorneys on a pro bono
basis, no counsel had ever sought paid status under § 3599. Nothing in the Motion clarified the
Firm’s intentions.
The foregoing sets forth the defects in the April 2012 Motion for Appointment of
Counsel, the Court’s view that Ray was ineligible for appointment of paid counsel under 18
U.S.C. § 3599(a)(2), and the confusion, miscommunication and misunderstanding that ultimately
yielded the May 8, 2012 Order. The obvious question is what to do with the $456,708.03 in CJA
vouchers that the Firm recently submitted for payment. The undersigned’s first impulse was
simply to vacate the May 8 Order based on the aforementioned considerations. However, the
Court also recognizes that the Firm may have subjectively expected to be paid out of CJA funds
(despite never communicating that expectation to the Court) based on the May 8 Order. Under
the circumstances, the Court concludes that the fairest, most equitable way to resolve the
situation is to approve the vouchers pursuant to 18 U.S.C. § 3599(g)(1) to compensate the Firm
for all legal services provided to Domineque Ray between May 8, 2012 (the date on which the
appointment order was entered) and January 23, 2017 (the date on which the U.S. Supreme Court
denied rehearing of the denial of Ray’s petition for writ of certiorari, thus fully and finally
concluding these § 2254 proceedings). The approved amounts for each attorney for that 56month period during which the Firm was appointed in these § 2254 proceedings are $13,650.80
for attorney Racher, $33,044.10 for attorney Tatum, and $11,908.90 for attorney Willard, plus
$4,724.82 in expenses, for a grand total of $63,328.62.80 in approved payments under the
submitted vouchers. All other entries on the vouchers are disallowed and not approved.5
5

As should be evident from the foregoing, the vast majority of the voucher entries
submitted relate to time expended after the § 2254 proceedings concluded in January 2017.
During the two-year period from January 2017 through February 2019, the Firm engaged in
extensive legal maneuvering to stay Ray’s execution and to litigate various other executionrelated issues, mostly in state court. To be clear, the Court is well aware that statutory and case
authority provides that such services are generally compensable for § 3599-appointed counsel.
See 18 U.S.C. § 3599(e) (“each attorney so appointed shall represent the defendant throughout
(Continued)
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In order to conform to certain technical requirements and limitations of the electronic
voucher processing software, and in order to receive reimbursement in the authorized amount set
forth above, counsel are ordered to prepare and submit new CJA30 voucher forms extracting
(and consisting solely of) their time entries and expenses for the period of May 8, 2012 through
January 23, 2017. Counsel are strongly encouraged to contact Chief Deputy Clerk Jeff Reinert
for assistance with this endeavor, and to ensure that their resubmitted CJA30 vouchers
correspond to the approved amounts set forth above.
DONE and ORDERED this 12th day of April, 2019.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

every subsequent stage of available judicial proceedings, including … applications for stays of
execution and other appropriate motions and procedures”); Harbison v. Bell, 556 U.S. 180, 194,
129 S.Ct. 1481, 173 L.Ed.2d 347 (2009) (holding that Ҥ 3599 authorizes federally appointed
counsel to represent their clients in state clemency proceedings and entitles them to
compensation for that representation”). However, there are extenuating circumstances here. The
Firm’s federal appointment in this case was the product of miscommunication and confusion.
The Court is convinced that Ray was ineligible for appointed counsel under § 3599(a)(2) because
he was not “financially unable to obtain adequate representation” for his § 2254 proceedings.
The Court did not understand the Firm to be seeking compensation under § 3599(g)(1) in
accordance with their representation of Ray, and would never have approved such an
arrangement under the particular facts presented here. This Order is designed not to subvert
Harbison and § 3599(e), but as a fair and equitable alternative to vacating the appointment order
altogether. Under this Order, every penny of the Firm’s billings during the entire lifespan of this
§ 2254 matter beginning with the date of appointment and ending with the Supreme Court’s
denial of rehearing nearly five years later is awarded to them. This result strikes the Court as fair
and just, and more favorable to the Firm than outright vacatur of an erroneous appointment order
that was the product of misunderstanding and undisclosed expectations.

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