Box v. Ornoski, et al

Filing 255

ORDER Denying without Prejudice Petitioner's Motion of Knut S. Johnson to Withdraw and for Appointment of Ellis M. Johnston, III as Co-Counsel (ECF No. 254 ). Signed by Judge Anthony J. Battaglia on 1/2/20. (jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER BOX,

Case No.: 04cv0619- AJB (RBB)
Petitioner,

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v.

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ORDER DENYING WITHOUT
PREJUDICE PETITIONER’S
MOTION OF KNUT S. JOHNSON
TO WITHDRAW AND FOR
APPOINTMENT OF ELLIS M.
JOHNSTON, III AS CO-COUNSEL
[ECF No. 254]

RON DAVIS, Warden of San Quentin
State Prison,

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Respondent.

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On December 10, 2019, Petitioner filed a Motion of Knut S. Johnson to Withdraw

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as Counsel and Motion to Appoint Ellis M. Johnston, III in Place of Knut S. Johnson. (ECF

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No. 254.) Petitioner notes that “[o]n November 21, 2019, the President formally nominated

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Knut Johnson to be a U.S. District Court judge and sent that nomination to the Senate” and

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that “[a]lthough a mere nomination does not mean that the nominee will be confirmed,

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there is now a likelihood Mr. Box will lose one of his attorneys soon.” (Id. at 1.) Petitioner

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states that “Mr. Box is entitled to two qualified attorneys for this capital habeas case,” that

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“[a]fter confirmation (should that occur) Mr. Box will only have one attorney,” and moves

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for the withdrawal of Mr. Knut Johnson and appointment of Mr. Ellis Johnston, III to

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replace him as co-counsel. (Id. at 1-2.)

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04cv0619

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18 U.S.C. § 3599(e) provides that: “Unless replaced by similarly qualified counsel

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upon the attorney’s own motion or upon motion of the defendant, each attorney so

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appointed shall represent the defendant throughout every subsequent stage of available

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judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new

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trial, appeals, applications for writ of certiorari to the Supreme Court of the United States,

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and all available post-conviction process, together with applications for stays of execution

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and other appropriate motions and procedures, and shall also represent the defendant in

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such competency proceedings and proceedings for executive or other clemency as may be

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available to the defendant.” In Martel v. Clair, 565 U.S. 648 (2012), the Supreme Court

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clarified the standard for evaluating and deciding substitution motions in capital

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proceedings, stating: “We hold that courts should employ the same ‘interests of justice’

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standard that they apply in non-capital cases under a related statute, § 3006A of Title

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18.” Id. at 652.

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Upon review, the Court is not persuaded that the interests of justice favor withdrawal

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of current co-counsel and appointment of replacement co-counsel at present. For one, the

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pending petition has been fully briefed by counsel and is under submission. Moreover, as

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Petitioner acknowledges, current co-counsel has not yet been confirmed, and Petitioner

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cites only this potential loss of co-counsel at some point in the future, rather than any

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current conflict or dispute, in support of the instant motion.

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proceedings, Petitioner’s motion for withdrawal and substitution [ECF No. 254] is

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DENIED without prejudice to renewal pending the outcome of Mr. Johnson’s nomination.

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IT IS SO ORDERED.

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Dated: January 2, 2020

Given the ongoing

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04cv0619