Jones v. Wong

Filing 124

ORDER signed by Magistrate Judge Craig M. Kellison on 3/30/15 ORDERING that petitioners counsels request for a determination under Harbison v. Bell, 556 U.S. 180, 190 n.7 (2009), and 18 U.S.C. § 3599 is denied without prejudice. (Dillon, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY GERALD JONES, 12 Petitioner, 13 14 No. CIV S-97-2167-MCE-CMK DEATH PENALTY CASE vs. ORDER RON DAVIS1, 15 Respondent. 16 / 17 Petitioner, a state prisoner proceeding with appointed counsel, seeks a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s counsel’s 19 request under Harbison v. Bell, 556 U.S. 180, 190 n.7 (2009), and 18 U.S.C. § 3599 for an order 20 determining “. . .that it would be appropriate for federal counsel to appear in state court to 21 exhaust state remedies.” 22 /// 23 /// 24 25 26 1 Pursuant to Federal Rule of Civil Procedure 25(d), Ron Davis is substituted for his predecessor. The Clerk of the Court is directed to update the docket to reflect the above caption. 1 1 At the outset, the court notes that the manner in which petitioner’s counsel’s 2 request has been presented is improper. Specifically, the request was made by way of a March 3 16, 2015, letter signed by Federal Defender Heather E. Williams, Esq., and submitted directly to 4 chambers “under seal.” The request was not and has not been filed on the court’s public docket, 5 nor is there any indication that the letter was sent to respondent’s counsel. Petitioner’s counsel 6 made no separate request that the court permit a filing under seal. Moreover, petitioner’s counsel 7 submitted a proposed order, also to be filed under seal. Again, petitioner’s counsel has offered 8 no justification for a filing under seal. 9 With respect to the substance of petitioner’s counsel’s request, the request will be 10 denied at this point in time. Under the authorities cited by petitioner’s counsel, the court may 11 authorize the Office of the Federal Defender to represent petitioner in state court exhaustion 12 proceedings. However, the cited authorities also clearly contemplate that, before such 13 authorization is granted, a determination must first be made as to whether it is permissible to 14 return to state court. Because no such determination has been made, petitioner’s counsel’s 15 request for authorization to represent petitioner in state court exhaustion proceedings is 16 premature. 17 Finally, the court notes that this case is currently stayed due to petitioner’s 18 incompetence. Respondent’s motion to lift the stay is currently set for hearing on June 24, 2015. 19 Accordingly, IT IS HEREBY ORDERED that petitioner’s counsel’s request for a 20 determination under Harbison v. Bell, 556 U.S. 180, 190 n.7 (2009), and 18 U.S.C. § 3599 is 21 denied without prejudice. 22 23 24 25 DATED: March 30, 2015 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 2

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