Robinson v. Phelps et al

Filing 19

MEMORANDUM ORDER granting 8 MOTION to Amend Motion to Appoint Counsel; denying 4 MOTION to Appoint Counsel; denying 16 MOTION to Appoint Counsel, MOTION to Stay. Signed by Judge Sue L. Robinson on 8/26/13. (cla, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

KEVIN ROBINSON,

Petitioner,
Civ. No. 12-1348-SLR

v.

DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.
MEMORANDUM ORDER

At Wilmington this

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day of August, 2013, having reviewed the above

captioned case;
IT IS ORDERED that petitioner Kevin Robinson's ("petitioner") motion to amend
his motion requesting representation by counsel by adding an argument pursuant to
Martinez v. Ryan, _

U.S. _,132 S.Ct. 1309, 1311-12 (2012) (D.I. 8) is GRANTED;

IT IS FURTHER ORDERED that petitioner's amended "motion for representation
by counsel" (D.I. 4) and his combined "motion to stay and [request for] representation
by counsel" (D.1. 16) are DENIED without prejudice to renew, for the reasons that
follow:
1. Background. In October 2012, petitioner filed an application for habeas
relief pursuant to 28 U.S.C. § 2254. (D.I. 3) The application asserts three claims: (1)
trial counsel provided ineffective assistance by failing to file a motion to suppress
petitioner's recorded police statements; (2) trial counsel provided ineffective assistance
by failing to investigate the State's case prior to trial and failing to request Brady

materials; and (3) the trial court committed plain error and engaged in misconduct by
communicating with the jury and the prosecutor outside the presence of defense
counsel. (D.I. 3)
2. In his amended motion for representation by counsel, petitioner asserts that
he cannot afford to retain counsel; he is unskilled in the law; he does not have the
ability to present his own case; and he is entitled to representation in this proceeding
under Martinez because he was represented by counsel during his trial and on direct
appeal, but was not represented by counsel in his Rule 61 proceeding. (D.1. 4; D.I. 8)
3. In his combined motion seeking both representation and a stay of this
proceeding, petitioner asks the court to stay his habeas proceeding, remand the case
back to the Delaware state courts, order the Delaware state courts to provide him with
counselor order such representation itself, and also provide representation for
petitioner in this proceeding. (D.1. 16) Citing Martinez, petitioner contends that he was
"ill-equipped" in his first post-conviction proceeding in the Delaware state courts
because, even though he raised claims of ineffective assistance of counsel in his Rule
61 proceeding, he "did not raise ineffectiveness where he should have, nor did he
artfully challenge his convictions and show cause where it should have been
demonstrated." (D.I. 16 at 2)
4. The State filed a response in opposition to petitioner's motion, contending
that a stay is not warranted in this case, and that the court does not have the authority
to remand the case back to the Delaware state courts and order the State of Delaware
to provide counsel. (D.I. 17) The State also contends that petitioner has failed to
provide reasons justifying representation by counsel in this proceeding. (D.I. 17 at 3)

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5. Standard of Review. "District courts ... ordinarily have authority to issue
stays, where such a stay would be a proper exercise of discretion." Rhines v. Weber,
544 U.S. 269, 276 (2005). And, although "AEDPA does not deprive district courts of
[this} authority, ... it does circumscribe their discretion. Any solution to this problem
must ... be compatible with AEDPA's purposes." Id. Consequently, district courts on
habeas review generally only stay a habeas proceeding if the habeas application is a
mixed application containing both exhausted and unexhausted claims, and the
petitioner's ability to file a future habeas application after proper exhaustion in the state
courts will be clearly foreclosed by the expiration of AEDPA's one-year filing period. Id.;
see also Pliler v. Ford, 542 U.S. 225 (2004).
6. In turn, it is well-settled that a petitioner does not have an automatic
constitutional or statutory right to representation in a federal habeas proceeding. See
Coleman v. Thompson, 501 U.S. 722, 752 (1991); United States v. Roberson, 194

F.3d 408, 415 n.5 (3d Cir. 1999). The recent Supreme Court decision, Martinez v.
Ryan, did not alter this long-standing rule, because the Martinez Court explicitly

refrained from recognizing or creating an automatic constitutional right to counsel in
collateral proceedings. See Martinez, 132 S.Ct. 1309, 1315 (2012). Rather, a district
court still has discretion over the issue, and may decide to seek representation by
counsel for a petitioner in a federal proceeding when that petitioner demonstrates
"special circumstances indicating the likelihood of substantial prejudice to [petitioner}
resulting ... from [petitioner's] probable inability without such assistance to present the
facts and legal issues to the court in a complex but arguably meritorious case." See

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Tabron v. Grace,6 F.3d 147, 154 (3d Cir. 1993); 18 U.S.C. § 3006A
(a)(2)(8)(representation by counsel may be provided when a court determines that the
"interests of justice so require").

7. Discussion. Turning first to petitioner's request to stay the instant
proceeding, the court concludes that a stay is not warranted. The application contains
exhausted claims and claims that are unexhausted but procedurally defaulted, which
means that the application is not "mixed." See Wenger v. Frank, 266 F.3d 218, 227-28
(3d Cir. 2001)(a habeas application containing unexhausted but procedurally defaulted
claims in addition to exhausted claims is not a mixed application). Moreover,
petitioner's assertion that he would like to present challenges to his conviction in a more
"artful" manner indicates that he is asking the court to stay the proceedings so that he
can "redo" his state collateral proceeding. Considering that the Delaware state courts
have already adjudicated the merits of the ineffective assistance of claims contained in
petitioner's pending habeas application, granting a stay to enable a more "artful"
presentation would be incompatible with AEDPA's objective of encouraging finality.
See Ryan v. Gonzales, 133 S.Ct. 696, 709 (2013)(opining that a stay was inappropriate
for ineffective assistance of counsel claims that were adjudicated on the merits in state
post-conviction proceedings and were therefore subject to review under § 2254(d)).
Thus, petitioner's motion for a stay is denied.
8. As for petitioner's request that the court remand his case to the state courts
and order the State of Delaware to provide him with representation, the motion is
denied for lack of jurisdiction. See In re Wolenski, 324 F.2d 309 (3d Cir. 1963)(per

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curiam)(explaining that the district court "had no jurisdiction" to "issue writ of mandamus
compelling action by a state official").
9. Although petitioner argues that Martinez v. Ryan authorizes the court to grant
his requested relief, the argument is unavailing. First, the Martinez Court explicitly
stated that its holding addressed only the constitutional claims presented in that case,
namely,
[w]here, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial review collateral proceeding, there was no counselor counsel
in that proceeding was ineffective.
Martinez, 132 S.Ct. at 1320. In other words, Martinez provides a limited method for

petitioners in federal habeas cases to prove cause for excusing his state court
procedural default of certain ineffective assistance of counsel claims; it does not
justify a federal district court's stay of a habeas proceeding or authorize a federal district
court to order a state to provide representation for petitioners in state collateral
proceedings. Second, the Martinez exception does not help petitioner here because
none of the ineffective assistance of counsel claims presented in the instant application
are procedurally defaulted. And, although petitioner asserts that he "did not raise
ineffectiveness where he should have," he does not identify any additional and
presumably procedurally defaulted ineffective assistance of trial counsel claim not
previously presented in state court for which he needs to seek cause to excuse the
procedural default of such claims. Thus, Martinez does not aid petitioner in obtaining
the relief he currently seeks.

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10. And finally, to the extent petitioner asks the court to provide representation
by counsel in the instant federal habeas proceeding, his request is unavailing. As
previously explained, because Martinez did not create a constitutional right to counsel in
collateral proceedings, the court must still determine if petitioner has demonstrated
special circumstances indicating that the interests of justice require representation.
Here, petitioner contends counsel should be provided because he is indigent, unskilled
in the law, and does not have the ability to present his own case. None of these
reasons, however, persuade the court that the interests of justice require representation
of counsel at this time. Significantly, petitioner's other filings in this case demonstrate
his ability to sufficiently articulate his arguments, the case is fairly straightforward and
capable of resolution on the record, and it does not appear that expert testimony will be
necessary or that the ultimate resolution of the petition will depend upon credibility
determinations.
11. For all of these reasons, petitioner's motions for a stay and representation
by counsel, either in this court or in state court, are denied.

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