Swan v. Danberg et al
Filing
45
MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 9/21/2020. (amf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RALPH E. SWAN,
Petitioner,
v.
ROBERT MAY, Warden, et al.,
Respondents.
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) C.A. No. 11-847 (MN)
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MEMORANDUM OPINION
Edson A. Bostic, Federal Public Defendant, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
DISTRICT OF DELAWARE, Wilmington, DE – Attorneys for Petitioner.
Maria T. Knoll, Martin B. O’Connor, Deputy Attorneys General, STATE
DEPARTMENT OF JUSTICE, Wilmington, DE – Attorneys for Respondents.
September 21, 2020
Wilmington, Delaware
OF
DELAWARE
NOREIKA, U.S. DISTRICT JUDGE
I.
BACKGROUND
On October 3, 2001, following a Delaware Superior Court jury trial, Petitioner Ralph E.
Swan (“Petitioner”) was convicted of capital murder and sentenced to death. (D.I. 44 at 1). In
November 2011, pursuant to 18 U.S.C. § 3599(a)(2), the Court entered an Order appointing the
Federal Public Defender’s Office (“FPDO”) and its Capital Habeas Unit (“CHU”) to represent
Petitioner in the instant federal habeas proceeding.
Now, in September 2020, a combination of certain circumstances has left the FPDO unable
to continue to represent Petitioner in the pending habeas matter. (D.I. 44 at 3). As a result, the
FPDO seeks leave to withdraw from further representation of Petitioner, and asks that he be
appointed substitute, qualified, and experienced habeas counsel to represent him under the
Criminal Justice Act. More specifically, the FPDO asks the Court to appoint Mr. Michael
Wiseman, Esquire to represent Petitioner pursuant to the Criminal Justice Act of 1964, 18 U.S.C.
§ 3006A (“CJA”) and the District of Delaware’s CJA Plan. (D.I. 44 at 3).
Attorney Wiseman is the former chief of the Philadelphia CHU (Federal Community
Defender’s Office, EDPA) and a seasoned capital and non-capital habeas litigator. (D.I. 44 at 3).
Attorney Wiseman, however, is not a member of this District’s CJA Panel.
II.
DISCUSSION
Although a habeas petitioner does not have a constitutional or statutory right to an attorney
in a federal habeas proceeding, see Coleman v. Thompson, 501 U.S. 722, 752 (1991), a district
court may seek legal representation by counsel for a petitioner who demonstrates “special
circumstances indicating the likelihood of substantial prejudice to [the petitioner] resulting . . .
from [the petitioner’s] probable inability without such assistance to present the facts and legal
issues to the court in a complex but arguably meritorious case.” Tabron v. Grace, 6 F.3d 147, 154
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(3d Cir.1993); 18 U.S.C. § 3006A(a)(2)(B) (representation by counsel may be provided for a
financially eligible petitioner when a court determines that the “interests of justice so require”).
Notably, the United States District Court for the District of Delaware has adopted a Plan for
Furnishing Representation in Federal Court for any Person Financially Unable to Obtain Adequate
Representation in Accordance with the CJA (“CJA Plan”). The Delaware CJA Plan provides for
the establishment of the Federal Public Defender Organization and for a separate panel of private
attorneys known as the CJA Panel. See Delaware CJA Plan at §§ V and VI. The CJA Panel
attorneys are available for appointment as counsel in habeas corpus proceedings filed pursuant to
28 U.S.C. § 2254, and the Delaware CJA Plan sets forth criteria for membership on the CJA Panel
and the appointment process. See Delaware CJA Plan at §§ IV(A)(1)(i), (2)(b); IV(B,)(C),(D); VI;
VII. The Delaware CJA Plan allows for the appointment of counsel not on the CJA Panel “in
exceptional circumstances.” Delaware CJA Plan at § VII(C). Section VII (C) provides, in relevant
part:
When the district judge presiding over a case […] determines that
the appointment of an attorney, who is not a member of the CJA
panel, is in the interest of justice, judicial economy, or continuity of
representation, or there is some other compelling circumstance
warranting his or her appointment, the attorney may be admitted to
the CJA panel pro hac vice and appointed to represent the CJA
defendant. Consideration for preserving the integrity of the panel
selection process suggests that such appointments should be made
only in exceptional circumstances. Further, the attorney, who may
or may not maintain an office in the District, should possess such
qualities as would qualify him or her for admission to the District’s
CJA panel in the ordinary course of panel selection.
Delaware CJA Plan at § VII (C).
As an initial matter, the Court grants the Motion for Leave to File Sealed Motion to
Withdraw Federal Public Defender and the Office of the Federal Public Defender as Counsel and
to Appoint Substitute Counsel. (D.I. 43). In turn, based on the assertions in the Motion to
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Withdraw/Substitute Counsel, the Court finds that exceptional circumstances are present in this
case. The case is complex and state post-conviction proceedings are ongoing. Attorney Wiseman
has considerable experience in both capital and non-capital litigation. Thus, the Court finds that
the interest of justice and judicial economy warrant the appointment of Attorney Wiseman to
represent Petitioner in this proceeding.
III.
CONCLUSION
For the reason set forth above, the Court will grant: (1) the Motion for Leave to File Sealed
Motion for the Federal Public Defender and FPDO to Withdraw as Counsel and to Appoint
Substitute Counsel (D.I. 43); and (2) the Motion for the Federal Public Defender and FPDO to
Withdraw as Counsel and to Appoint Substitute Counsel (D.I. 44). Consequently, the Court will
appoint Attorney Michael Wiseman to represent Petitioner. A separate Order will be entered.
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