TOLLETTE v. WARDEN GDCP

Filing 56

ORDER granting 55 Motion to Appoint Counsel ANNA ARCENEAUX for LEON TOLLETTE appointed. Ordered by US DISTRICT JUDGE CLAY D LAND on 01/14/2020 (glg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
LEON TOLLETTE,

:
:
Petitioner,
:
:
VS.
:
:
WARDEN, GEORGIA DIAGNOSTIC
:
AND CLASSIFICTION PRISON,
:
:
Respondent.
:
_________________________________

CIVIL ACTION NO. 4:14-CV-110 (CDL)

ORDER
Pending before the Court is a motion for nunc pro tunc appointment of counsel.
Mot. for nunc pro tunc appointment of counsel, ECF No. 55. Anna Arceneaux seeks
appointment as co-counsel in this capital habeas corpus action that is currently pending
in the Eleventh Circuit. Id. at 1.
In an Order dated May 7, 2014, the Court, pursuant to 18 U.S.C. § 3599, appointed
Brian Kammer and Kirsten Salchow, both of whom were employed at the Georgia
Appellate Practice and Educational Resource Center (“Georgia Resource Center”) to
represent Tollette. Order, ECF No. 6. Salchow departed from the Georgia Resource
Center in January 2017 and Kammer departed in December 2018. Mot. for Substitution
Counsel at 2, ECF No. 52.
Vanessa Carroll became the Interim Executive Director of the Georgia Resource
Center. Id. at 3. While Tollette’s case was pending in the Eleventh Circuit, Carroll filed
an entry of appearance in his case, and this Court substituted her as lead counsel to
represent Tollette. Id. at 2; Order, ECF No. 53; Tollette v. Warden, 16-17149 (11th Cir.).
1

In August 2019, Arceneaux became the new Executive Director of the Georgia
Resource Center. Mot. for nunc pro tunc appointment of counsel at 2, 4, ECF No. 55.
Arceneaux filed a notice of appearance in Tollette’s case on October 4, 2019 and
presented oral arguments on Tollette’s behalf on November 20, 2019. Id. at 2-3.
18 U.S.C. § 3599(a)(2) provides that
[i]n any post conviction proceeding under section 2254 or 2255 of title 28,
United States Code, seeking to vacate or set aside a death sentence, any
defendant who is or becomes financially unable to obtain adequate
representation . . . shall be entitled to the appointment of one or more
attorneys . . . .
18 U.S.C. § 3599(c) provides that “at least one attorney so appointed must have been
admitted to practice in the court of appeals for not less than five years, and must have
had not less than three years’ experience in the handling of appeals in that court in felony
cases.” The Court may, however, “for good cause . . . appoint another attorney whose
background, knowledge, or experience would otherwise enable him or her to properly
represent the defendant, with due consideration to the seriousness of the possible penalty
and to the unique and complex nature of the litigation.” 18 U.S.C. § 3599(d); In re
Lindsey, 875 F.2d 1502,1507 n.3 (11th Cir. 1989) (“The use of the words ‘another
attorney’ suggest that the court may appoint an attorney in lieu of one meeting the
statutory requirements, rather than an attorney in addition to one meeting the
requirements.”).
Arceneaux has not been admitted to practice in the Eleventh Circuit for at least five
years, and she has not had three years’ experience handling felony cases in that court.
But she has extensive experience in capital litigation, and she is now the Executive
Director of the Georgia Resource Center, which began representing Tollette in 2007.
2

Mot. for nunc pro tunc appointment of counsel at 4, ECF No. 55.

Arceneaux has

practiced law since 2006 and was admitted to practice before the United States Supreme
Court in 2015, the Fourth Circuit in 2014, the Fifth Circuit in 2015, and the Eleventh Circuit
in 2019. Id. at 5. She has practiced exclusively in the area of capital habeas corpus
litigation since joining the Georgia Resource Center in August 2019. Id. Prior to joining
the Georgia Resource Center, Arceneaux was a Staff Attorney for more than ten years
with the Capital Punishment Project of the national office of the ACLU. Id. She has
appeared as lead counsel and associate counsel in capital proceedings in trial, appeal,
and post-conviction in numerous cases across the county. Id. at 5-6.

Arceneaux is a

frequent presenter at national and regional trainings for capital and criminal defense
attorneys. Id. at 6. She is a faculty member at the National Habeas Institute, which is
a seminar for capital post-conviction attorneys sponsored by the National Institute for Trial
Advocacy and the United States Administrative Office of the Courts. Id.

Arceneaux is

thoroughly familiar with the record in Tollette’s case. Id. at 3, 7. Tollette also requests
that she be appointed to represent him in this action. Id. at 7.
Tollette is entitled to the appointment of “one or more” qualified counsel. 18
U.S.C. § 3599(a)(2). The Court finds “good cause” to appoint Arceneaux as co-counsel
for Tollette. 18 U.S.C. § 3599(d)

Her “background, knowledge, [and] experience” with

capital litigation and her familiarity with Tollette’s case will enable her to properly
represent him in this action. Id
Accordingly, Tollette’s motion for nunc pro tunc appointment of Anna Arceneaux
as co-counsel effective October 4, 2019 is GRANTED.
appointment of counsel, ECF No. 55.
3

Mot. for nunc pro tunc

Arceneaux will be compensated at the rate approved by the Administrative Office
of the United States Courts.

Instructions regarding procedures for obtaining

investigative, expert, or other services necessary for representation of Tollette; limitations
on fees for such services; submission of vouchers; and reimbursement of out-of-pocket
expenses are detailed in the Court’s May 7, 2014 Order. Order, ECF No. 6
SO ORDERED, this 14th day of January, 2020.

s/Clay D. Land
CLAY D. LAND, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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