Ward v. Norris
ORDER granting 147 Motion for Leave to File Document Ex Parte and Under Seal; and denying 149 Motion to Strike the Sealed Motion to Appoint Counsel and the Court's Order. Signed by Judge James M. Moody on 8/8/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
BRUCE EARL WARD,
RAY HOBBS, Director of the
Arkansas Department of Correction
Before the Court are Petitioner’s Motion for Leave to File Document Ex Parte and Under
Seal (Docket # 147), and Respondent’s Motion to Strike Ex Parte Motion and Order for
Appointment of Counsel (Docket # 149). Responses have been filed. Petitioner seeks to file an
ex parte motion for expert services concerning the investigation of a potential incompetency to
be executed claim. Respondent argues that the motion is untimely as no execution date has been
set. Respondent also seeks to strike a previously sealed motion requesting appointment of
counsel (Docket # 131) and the sealed order granting the request (Docket # 132), arguing that 18
U.S.C. § 3599 does not permit ex parte appointments of counsel. (Docket # 149).
Respondent’s Motion to Strike the Sealed Motion to Appoint Counsel and the Court’s
Order (Docket # 149) is DENIED. Petitioner’s ex parte motion amounted to little more than a
motion for clarification and notice of appearance. Petitioner’s counsel, Joseph W. Luby1, had
previously been appointed to represent Petitioner during his habeas corpus proceedings. 18
U.S.C. § 3599(e) clearly sets out that appointed counsel will continue representation “throughout
every subsequent stage of available judicial proceedings, including... all available post-conviction
process, together with applications for stays of execution and other appropriate motions and
The Federal Public Defender was also reappointed as counsel (Docket # 135).
procedures, and shall also represent the [petitioner] in such competency proceedings and
proceedings for executive or other clemency as may be available to the [petitioner].” Petitioner’s
motion for appointment of counsel was unnecessary as his previous appointment was continuing
in this matter; the Court’s order merely affirmed that the appointment continued to include the
current issues. Jennifer Merrigan, an associate in Mr. Luby’s firm, was also appointed by the
In light of the subject matter of Petitioner’s request for expert services, the Motion for
Leave to File Document Ex Parte and Under Seal (Docket # 147) is GRANTED. Although an
execution date has not been set, it may very well be that expert services are warranted at this
time, as investigating competency to be executed issues may take some time. To allow for this
case to proceed expeditiously, it may be reasonable for a suspected competency issue to be
investigated prior to the setting of an execution date.
IT IS SO ORDERED this 8th day of August, 2011.
James M. Moody
United States District Judge
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