Schwindler v. Holt

Filing 112

ORDER dismissing as moot re 104 Motion for Certificate of Appealability; dismissing as moot re 104 Motion for Reconsideration; granting re 109 Second Renewed Motion to Appoint Counsel. To permit Mr. Mikell an opportunity to review this matte r and consult with his client, this case is STAYED until December 1, 2023. During the pendency of the stay, the parties are DIRECTED to confer and, no later than December 1, 2023, file a joint Status Report proposing a schedule, or if they cannot agree their respective proposals, for further proceedings on Respondent's re 78 Amended Answer. Signed by Magistrate Judge Christopher L. Ray on 9/5/23. (loh)

Case 4:16-cv-00189-WTM-CLR Document 112 Filed 09/05/23 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
FRANK JOSEPH
SCHWINDLER,
Petitioner,
v.
P.O. AHMED HOLT, Warden,
Respondent.

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CV416-189

ORDER
Currently before the Court are three motions from Petitioner Frank
Joseph Schwindler related to his request for court-appointed counsel.
See docs. 104 & 109.

Most relevant, for the reasons discussed more fully

below, is his Second Renewed Motion to Appoint Counsel.

Doc. 109.

Respondent does not oppose the Second Renewed Motion. See S.D. Ga.
L. Civ. R. 7.5. Since that Motion is GRANTED, doc. 109, his request,
in the alternative, to reconsider the Court’s prior denial of his request for
counsel or certify its denial for interlocutory appeal, doc. 104, is
DISMISSED as moot.
As this Court has explained multiple times, Schwindler has no right
to appointed counsel at this stage in his § 2254 proceeding.
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See doc. 75;

Case 4:16-cv-00189-WTM-CLR Document 112 Filed 09/05/23 Page 2 of 4

doc. 87; see also, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
(“Our cases establish that the right to appointed counsel extends to the
first appeal of right, and no further.”).

Schwindler, again, does not

contend that he is entitled to appointed counsel, but requests that the
Court exercise its discretionary authority to appoint counsel.

See doc.

109 at 6-7 (citing 18 U.S.C. § 3006A); see also 28 U.S.C. § 2254(h). Such
discretionary “appointment of counsel is ‘a privilege that is justified only
by exceptional circumstances.’”

Adams v. Wilcher, 2019 WL 2339270, at

*1 (S.D. Ga. May 31, 2019) (quoting McCall v. Cook, 495 F. App’x 29, 31
(11th Cir. 2012)). As the United States District Court for the Northern
District of Florida has summarized: “Taken together with the Habeas
Rules, the decisions under section 3006A(a)(2)(B) embody a presumption
favoring appointment of counsel for legally unsophisticated prisoners as
long as the petition (1) is not frivolous, that is, as long as it survives
summary dismissal pursuant to Habeas Rule 4 because it presents a
‘triable’ issue or includes a ‘colorable claim,’ and (2) requires further
significant or sophisticated factual or legal development.”
Jones, 2018 WL 11267392, at *1 (N.D. Fla. Sept. 27, 2018).

2

Joyner v.

Case 4:16-cv-00189-WTM-CLR Document 112 Filed 09/05/23 Page 3 of 4

Schwindler’s Petition has already been found sufficient to avoid
summary dismissal.

See, e.g., doc. 77. Schwindler’s Second Renewed

Motion presents circumstances that the Court agrees “require further
significant factual or legal development.”

Specifically, Schwindler

points out that, in 2020, the Georgia Supreme Court reversed the Georgia
Court of Appeals opinion affirming his conviction on grounds that
implicate the bases for the instant Petition. See doc. 109 at 6, 8-9. In
State v. Lane, the Georgia Supreme Court held that “the proper approach
[to ineffective assistance of counsel claims] is to consider collectively the
prejudicial effect, if any, of trial court errors, along with the prejudice
caused by any deficient performance of counsel.”
(Ga. 2020).

838 S.E. 2d 808, 815

In reaching that conclusion, the Supreme Court reversed a

“rule . . . employed by Georgia appellate courts for more than 40 years,”
and “overrule[d] [its] prior decisions and those of the Court of Appeals
that hold that the prejudicial effect of multiple trial court errors may not
be considered cumulatively . . ., and disapprove[d] any decisions with
language to that effect . . . .” Id. Among those decisions is Schwindler
v. State, 563 S.E. 2d 154 (2002).

Id. at 820. The Court expresses no

opinion on the significance of that disposition for the instant proceedings.
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Case 4:16-cv-00189-WTM-CLR Document 112 Filed 09/05/23 Page 4 of 4

It is satisfied, however, that determining that significance merits the
appointment of counsel.
Accordingly, pursuant to 18 U.S.C. § 3006A(a)(2)(B), the Court
appoints attorney Samuel LeCraw Mikell, of the law firm Griffin Durham
Tanner & Clarkson, P.O. Box 10244, Savannah, Georgia 31412 to
represent Schwindler.

To permit Mr. Mikell an opportunity to review

this matter and consult with his client, this case is STAYED until
December 1, 2023.

During the pendency of the stay, the parties are

DIRECTED to confer and, no later than December 1, 2023, file a joint
Status Report proposing a schedule, or if they cannot agree their
respective proposals, for further proceedings on Respondent’s Amended
Answer, doc. 78.
SO ORDERED, this 5th day of September, 2023.
________________________________
_________________________
HRISTOPHER
RIS
I TO
OPH
P ER L. RAY
CHR
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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