Doolin v. Wong

Filing 168

ORDER APPOINTING Replacement CJA Counsel, signed by Magistrate Judge Stanley A. Boone on 1/28/2015. Attorney Pamala Sayasane and Robert Bryan for Petitioner Keith Zon Doolin Added. Attorney Michael Robert Levine Terminated. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEITH ZON DOOLIN,

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Petitioner,

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v.

Case No. 1:09-cv-01453-AWI-SAB
DEATH PENALTY CASE
ORDER APPOINTING REPLACEMENT CJA
COUNSEL

KEVIN CHAPPELL, as Warden of San
Quentin State Prison,
Respondent.

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The Selection Board has recommended appointment of counsel to replace CJA attorney

22 Michael Levine, Petitioner’s federal counsel of record. (ECF No. 167.) Good cause appearing,
23 IT IS HEREBY ORDERED as follows:
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1.

Robert R. Bryan, 2107 Van Ness Ave., Suite 203, San Francisco, CA 94109 and

25 Pamala Sayasane, 660 4th Street # 341, San Francisco, CA 94107 are appointed lead and second
26 counsel, respectively, to represent Petitioner pursuant to 18 U.S.C. § 3599. See Local Rule
27 191(c).
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2.

Because this federal proceeding is in abeyance pending exhaustion of state
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1 remedies before the California Supreme Court, (see ECF No. 134), absent a request by the
2 parties supported by good cause, the Court sees no present need for case management
3 conference. However, no reimbursement rate has been established for Mr. Bryan and Ms.
4 Sayasane. To assist the Court in this matter, Mr. Bryan and Ms. Sayasane shall complete as
5 much or all of the Case Evaluation Form (attached as Appendix A) as is possible at this stage of
6 the proceeding, and each of them shall complete the Rate Justification Worksheet (attached as
7 Appendix B). These documents shall be submitted to the Court confidentially, filed under seal
8 within thirty (30) days of filing of this order. Following establishment of reimbursement rates,
9 which rates shall automatically adjust for changes in the Ninth Circuit Cost Policies, appropriate
10 budget forms will be electronically available to Petitioner’s counsel.
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3.

Petitioner’s counsel are reminded of their obligation to file quarterly status reports

12 during abeyance and to promptly notify the Court of any ruling on the state exhaustion petition.
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4.

Counsel appointed pursuant to 18 U.S.C. § 3599 and Local Rule 191 to represent

14 a condemned prisoner seeking relief under 28 U.S.C. § 2254 will be required to propose budgets
15 for their time and expenses anticipated during each phase of the proceedings. The process for
16 proposing budgets and submitting vouchers for reimbursement follows:
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Budget Procedures
i.

Under 18 U.S.C. § 3599(f), ex parte consideration of funding applications
requires petitioner to make a showing of the need for confidentiality. Since
budget applications require disclosure of matters protected by the
attorney-client or work-product privileges, the need for confidentiality is
inherent in the budgeting process. See Fed. R. Civ. P. 26(b)(1) and (3).
Accordingly, budget forms and supporting documentation will be filed
under seal and not served on counsel for respondent. Counsel shall submit
budget-related filings by e-mailing them to the court’s Approved Sealed@
e-mail address, [e-mail]. The provisions of
Local Rule 141 regarding the process for filing documents under seal are
suspended with respect to budgeting in capital habeas cases. Any ex parte
court proceeding regarding funding will be reported and maintained under
seal.

ii.

A proposed budget should reflect the total attorney time required,
including time for budget preparation, as well as the time for paralegals,
investigators and experts, if applicable, and any anticipated travel or other
expenses. Voucher preparation, however, is considered part of overhead
and not reimbursable. In preparing a budget, counsel shall refer to the
Ninth Circuit Judicial Council’s costs policies for capital habeas cases.
Current cost policies are available on this court’s website at
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www.caed.uscourts.gov, under Forms, CJA Capital Habeas Forms.

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iii.

In support of the proposed budget for each phase, counsel shall file
informative declaration(s) which explain and/or justify the hours, tasks,
and expenses sought. Counsel shall include any information that will assist
the court in determining the reasonableness of the budget request. If
petitioner is represented by two attorneys, counsel shall explain how the
work will be divided between them. The supporting documentation should
be captioned and filed under seal in a complete application, including
explanatory remarks, declarations, and exhibits. All supporting
declarations must be properly subscribed pursuant to 28 U.S.C. § 1746.

iv.

Counsel are expected to utilize all reasonable means to minimize costs, to
tier staff responsibilities to lower-rate personnel whenever practical, and to
utilize paralegals and law clerks to complete tasks for which attorney
expertise is not required.

v.

Requests in the budget for investigative and/or expert assistance should be
detailed and present the factual basis to support the request. Prior to
approval, the court must find that the requested expert or investigative
assistance is “reasonably necessary for the representation of the
defendant.” 18 U.S.C. § 3599(f). Information which should be included in
the supporting declaration to assist the court includes, but is not limited to,
a specification of: (1) the evidence sought to be uncovered; (2) facts
suggesting that such investigation, expert service, or other assistance is
warranted; (3) whether the evidence existed at the time of the state trial;
(4) whether similar assistance was provided or requested in state court; (5)
the purpose of the evidence on federal habeas, that is, the connection of
the evidence sought to be uncovered to a prospective claim or contention
that will be raised in the federal petition; (6) the name of the expert or
investigator; and (7) the proposed billing rate and the reasonableness of
the rate. Presumptive rates contained in the Ninth Circuit Capital Habeas
Costs Policy, as adjusted from time to time, will apply to all experts,
investigators, and paralegals.

vi.

The approved budget for each phase will be one sum for attorney time and
one sum for expenses. In addition, each expert and investigator’s time will
be a separate budget figure. Counsel will not be allowed to exceed the
authorized budget during any phase without first seeking prior approval,
or amendment to the budget, and explaining why additional funds are
required. Failing to obtain approval to amend the budget could result in
the denial of unauthorized or excessive expenditures.

vii.

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The budget for each phase will be closed out when the work for that phase
is completed. Hours and expenditures will not be carried over to the next
phase. Rather, a new budget for each succeeding phase must be proposed
by counsel and approved by the court. As the case progresses through each
case management phase, counsel are responsible for ensuring that the case
is litigated within the established budget.

viii.

Any budget approved by the district court must also be approved by the
Capital Case Committee and Judicial Council of the Ninth Circuit.
Counsel are authorized to proceed based upon the initial budget approved
by the district court and will be contacted should any further clarification,
information, or action be requested by the Capital Case Committee and
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Judicial Council.

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Approved Compensation
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i.

Work inherently necessary to practice and remain current in the area of
federal habeas law, which is not directly attributable to a particular case,
including the review and analysis of new cases, is considered general
overhead, and is not reimbursable.

ii.

The court will not approve compensation for administrative services, such
as secretarial services, preparation of payment vouchers, or
communications with court staff.

iii.

Unless a contrary need is demonstrated, the court will compensate only
one attorney for physical attendance at court hearings. Upon sufficient
justification, the court may authorize compensation for up to two members
of counsel’s legal staff at a time for visits to petitioner and witness
interviews. Counsel who reside outside the Fresno area will typically
make court appearances by telephone unless they have requested, and
been approved, for travel to Fresno.

iv.

The court will not approve compensation for work performed on appellate
proceedings (whether from interlocutory orders or final judgments).
Counsel shall seek compensation for work performed at the appellate level
from the Court of Appeals after having obtained an appointment from that
court.

v.

The court will compensate counsel for professional time spent in airport
(or other common carrier) terminals and as a passenger on common
carriers only when counsel is performing substantive tasks on the case that
can be billed to a professional time category. Terminal processing time as
well as driving time will be compensated at the maximum rate of $100 per
hour. In light of the public service nature of CJA appointments together
with the fact that public rather than private funds are being utilized, the
travel reimbursement set forth in this paragraph will be applied.

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Approved Expenses
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i.

The court will authorize payment for miscellaneous expenses reasonably
incurred and subject to national and district policies and procedures.
Copies of all bills and receipts must be submitted for reimbursement
approval.

ii.

Mileage for case-related travel by privately owned (not rented) automobile
may be claimed at the rate in effect for federal judicial employees,
available from the CJA Administrator. Case-related parking fees and
bridge/road tolls also are reimbursable. Counsel should assess whether
case-related travel would be more cost effective by privately owned
automobile or rented automobile.

iii.

Ground transportation other than by privately owned automobile will be
reimbursed on an actual expense basis. Counsel should make every effort
to obtain the lowest possible fares or rates.

iv.

Though travel expenses may be authorized in the budget, each time a
member of petitioner’s litigation team intends to travel by air, a Travel
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Request and Authorization Form must be authorized by the CJA
Administrator and approved by the court, unless counsel can procure more
economical travel arrangements on his or her own. Approval of a travel
authorization form is the procedure by which government rates for travel
are obtained; the form does not function as approval of travel expenses in
excess of the budget. Should the authorized budget be insufficient for the
anticipated costs of travel, counsel must seek modification of the budget
from the court in addition to obtaining a travel authorization form from the
CJA Administrator.

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v.

The Travel Request and Authorization Form enables CJA counsel to
receive air travel at government rates paid directly from CJA funds.
Counsel are expected to request authorization for air travel through the
CJA Administrator in sufficient time to obtain low cost advance fare for
air travel or to provide justification why an advance fare could not be
obtained. In no case will counsel be reimbursed for first-class travel
expenses. Counsel may make their own reservations for air travel and seek
reimbursement on a CJA voucher, but reimbursement will be limited to
the available government rates.

vi.

The court will approve reimbursement for actual food and lodging
expenses for out of town travel on case-related business, subject to the
maximum established area per diem rate. Current travel and subsistence
allowances are available on the GSA website, www.gsa.gov, under Per
Diem rates, or from the CJA Administrator.

vii.

Counsel will be reimbursed for the actual cost of case-related longdistance telephone calls. The court will not authorize payment for any
surcharges or for general telephone service. Facsimile transmissions are
reimbursable for the actual amount of the telephone charge.

viii.

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Counsel will be reimbursed for the actual out-of-pocket expenses incurred
in photocopying, up to a maximum of 10 cents per page. Counsel will be
expected to send large photocopying projects, including those involving
documents over 100 pages in length, to an outside copying service where
the cost for outside photocopying is less than the in-house photocopying
expense.

ix.

The court will authorize reimbursement for the actual cost of case-related
regular U.S. postage. The court will approve reimbursement for the actual
cost of other postal services or the use of non-federal carriers (such as
overnight or two-day delivery) only if circumstances require the use of
such services. If counsel utilize expedited delivery services, a statement
detailing the necessity of such delivery must be submitted with the
itemized bill. Counsel are to make every effort to use regular U.S. mail
and e-mail via the Internet whenever possible. The court may modify this
rule if counsel make excessive use of costly overnight carriers.

x.

The court will not reimburse counsel for the following expenditures:

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1)

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2)
3)
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General office overhead; including cellular telephone maintenance
fees;
Books or other publications;
Flat-fee computer research plans or computer software programs.
General law office supplies and equipment;
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5)

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Travel, attendance, registration, or material costs related to
educational seminars.

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Voucher Procedures
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i.

All payment vouchers shall be submitted in the e-voucher format to CJA
Administrator Connie Garcia. Questions regarding the e-voucher system
should be directed to Ms. Garcia at [phone] or
[e-mail].

ii.

All vouchers are reviewed for reasonableness. In addition, fees or
expenses which exceed the authorized budget or the limits set forth herein
are subject to reduction without further notice or explanation.

iii.

Counsel shall submit vouchers covering services from the commencement
to the completion of each budgeted phase, on a monthly basis. Generally,
vouchers should extend from the first to the last day of each month, except
when combined attorney’s fees and expenses total less than $1,000 for any
given month. In that event, the fees and expenses for that month may be
combined with the fees and expenses incurred the following month. If a
budgeted phase commences mid-month, the voucher may extend to the
end of the following month. Similarly, if the budgeted phase is completed
mid-month, the voucher will extend to that date. All vouchers are to be
submitted within the first 14 days of the month following the last day of
service reported. All fees and expenses for a particular time period should
be submitted on the same voucher to the extent possible (e.g., travel and
administrative expenses).

iv.

The court expects counsel to submit vouchers within 90 days of the
services provided, absent prior arrangements made with the court for a
later submission. Without prior court approval, vouchers will not be
processed for services rendered more than 90 days prior to the date of
submission of the voucher.

v.

Voucher timesheets shall specifically describe the work performed and the
time allotted to each specific task, reported to one-tenth (.1) of an hour.
Descriptions should not be vague or general. Each time entry shall reflect
discrete, individual tasks and shall not simply list multiple tasks performed
in a specified block of time. Information should be provided in sufficient
detail so as to permit meaningful review, including: identification of
individual witnesses interviewed; identification, by name or title, of
persons involved in telephone conversations or conferences; specific
topics researched; and identification of pleadings drafted or reviewed.

vi.

In the event that in-court transcripts of non-evidentiary hearings are
requested by petitioner, petitioner’s counsel should arrange with the court
reporter(s) to bill the court directly through the use of a CJA Form 24.
Counsel shall not include the cost of transcripts as an out-of-pocket
expense on a CJA Form 30.

vii.

Services provided by counsel’s non-attorney employees may be listed as
an expense on counsel’s CJA Form 30. Independent contractor paralegal
services, like investigator and expert services, should be billed on a CJA
Form 31. Petitioner’s counsel shall adhere to these procedures and policies
for the preparation of budgets for each phase of these proceedings and for
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the preparation and submission of all payment vouchers.

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5.

In addition to serving this order upon counsel, the Clerk is directed to serve it

upon Connie Garcia, CJA Panel Administrator, Federal Defender’s Office, 2300 Tulare Street,
Suite 330, Fresno, CA 93721.

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6 IT IS SO ORDERED.
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Dated:

January 28, 2015
UNITED STATES MAGISTRATE JUDGE

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APPENDIX A

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CONFIDENTIAL CASE EVALUATION FORM
The answers to these questions are for case management and budgeting purposes only and
3 will not be binding in any respect on substantive issues to be raised in the course of litigation.
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4 NAME OF ATTORNEY(S)
5 Lead Counsel:
6 Co-Counsel:
7 STATE LEVEL PROCEEDINGS
8 1. Did (or does) either lawyer represent the petitioner during any part of the state proceedings?
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[__]

No -- proceed to question 2.

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[__]

Yes (indicate which lawyer) ________________________________________.

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If yes, in what aspects of the case? _________________________________________.

12 2. Was a state habeas petition involving the same judgment and sentence filed?
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[__]

No

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[__]

Yes

Date: ___________

Disposition & Date: _______________________.

15 3. Were funds requested at the state level for state post-conviction investigation?
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[__]

No

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[__]

Yes

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Purpose

Amount Requested:

____________.

Amount Authorized: ____________.

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20 4. Was post-conviction discovery requested at the state level?
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[__]

No

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[__]

Yes

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Nature of Discovery Requested: ___________________________________________.

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Was it:

Granted? ____________. Denied? ____________.

25 5. Was an evidentiary hearing held at the state level?

[__]

Yes

[__]

No

26 STATUTE OF LIMITATIONS
27 Based on current information, what is the date required by the statute of limitations for filing of
28 the petition? ____________________________________________.
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1 THE RECORD
2 1. Has the record been assembled? [__]
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Yes

[__]

No:

Location of state post-conviction record: _____________________________________.

4 2. Have the files of prior counsel been obtained?

[__]

Yes

[__]

No

5 3. As accurately as possible (recognizing that it may be an estimate at this point), provide
6 information about the size of the record:
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TYPE OF RECORD:

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Clerk’s Transcript

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[____________]

Reporter’s Transcript

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NO. OF PAGES:

Trial Exhibits

[____________]
[____________]

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Appellate Pleadings

[____________]

Post-Conviction
Record
(including
[____________]
pleadings & transcripts)
Ancillary Files and Records (including
prior counsel’s case files, investigative [____________]
reports, etc.)

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APPENDIX B

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RATE JUSTIFICATION WORKSHEET

3 1. Attorney Name and Address: ___________________________________________________
4 _____________________________________________________________________________.
5 2. Experience and Qualifications:
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Admitted to practice: ____ years.

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Member of the bar of a federal district court or court of appeals: ____ years.

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Primary area of practice: __________________________________________________.

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Has previously represented a client in (check all that apply):

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[__] Direct appeal of a death sentence,

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[__] State capital post-conviction proceeding,

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[__] Direct appeal of a non-capital homicide conviction,

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[__] Capital trial,

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[__] Non-capital homicide trial,

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[__] Other felony trial,

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[__] Non-capital federal habeas corpus,

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[__] Federal capital habeas proceeding.

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Number of clients previously represented in federal habeas actions: ________________.

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Most recently authorized hourly rate in such a case: $______.

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Approximate hours spent in training programs on death penalty litigation and/or post-

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conviction representation: ____________.

22 3. Other Relevant Information: ___________________________________________________
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_____________________________________________________________________________

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_____________________________________________________________________________.

25 4. Rate Sought: $______.
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For maximum allowable rates, counsel shall refer to the Ninth Circuit Judicial Council’s

27 costs policies for capital habeas cases. Current cost policies are available on this court’s website
28 at www.caed.uscourts.gov, under Forms, CJA Capital Habeas Forms.
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