Sullivan v. Ficco et al

Filing 78

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: 77 motion for an extension of time and to appoint new counsel is ALLOWED, in part, and DENIED, in part. New counsel will not be appointed. Petitioners present counsel, or petitioner himself acting pro se, may submit a reply memorandum, not to exceed 20 pages, on or before April 29, 2016. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts
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RALPH SULLIVAN,
Petitioner,
v.
EDWARD FICCO and
THOMAS F. REILLY,
Respondents.

Civil Action No.
03-11500-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves a habeas corpus petition filed under 28
U.S.C. § 2254 that has been pending before this Court for over a
decade while petitioner has attempted to exhaust all remedies
available to him in state court.
Now that respondent has answered the petition, which has
been amended with leave of court, and the issues have been
extensively briefed, petitioner’s counsel seeks 1) to withdraw
his appearance, 2) to have the Court appoint replacement counsel
and 3) to extend the time for filing a reply memorandum.

For

the reasons that follow, the motion will be allowed only to the
extent that an extension of time will be afforded to
petitioner’s existing counsel to file a reply brief.

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The motion

will, however, be denied with respect to petitioner’s request to
appoint replacement counsel.
I. Background
On January 25, 1997 petitioner Ralph Sullivan (“Sullivan”
or “petitioner”) was convicted in Middlesex Superior Court of
one count of murder in the first degree, one count of unlawful
possession of a firearm, three counts of armed robbery and one
count of breaking and entering in the nighttime.

He was

sentenced to life in prison without parole, to be followed by
35-40 years, aggregated.

On August 12, 2003, Sullivan filed a

petition for a writ of habeas corpus in this Court, alleging as
grounds for relief improper evidentiary rulings, ineffective
assistance of counsel and improper closing argument by the
prosecution.

The petition was stayed by this Court from June

21, 2004 through May 20, 2014 in order to permit petitioner time
to exhaust his available remedies in state court.
Counsel from the Massachusetts Committee for Public Counsel
Services (“CPCS”), the state public defender service, was
appointed to represent petitioner in connection with his state
proceedings.

In addition to representing Sullivan in the direct

appeal of his conviction in state court and in his state habeas
petition, Sullivan’s original appointed counsel, Wendy Sibbison,
filed this federal habeas petition.

One year after the petition

was filed, Sullivan’s current counsel, Michael Cutler, replaced
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Sibbison as CPCS-appointed counsel in the state habeas
proceedings.

When those proceedings were terminated, Cutler

began representing Sullivan in this case.

II. Motion for an Extension of Time and to Appoint New Counsel
A. Legal Standard
The United States Supreme Court has held that the Sixth
Amendment right to counsel does not extend to habeas petitions
in either capital or non-capital cases. Pennsylvania v. Finley,
481 U.S. 551 (1987); Murray v. Giarrantano, 492 U.S. 1 (1989).
Petitioners in capital habeas cases possess a statutory right to
counsel through the provisions of 18 U.S.C. § 3599.

This right

does not, however, extend to habeas petitions filed by inmates
who were charged with capital offenses but were sentenced to a
non-capital punishment. See 18 U.S.C. § 3599(a)(1).
B. Application
Because petitioner was sentenced to a non-capital
punishment, he has neither a constitutional nor a statutory
right to counsel to represent him in his federal habeas
petition.

Petitioner has been fortunate to receive appointed

counsel, supported by state funds, up to this point in the
proceedings.

As counsel notes, however, due to the complexity

of this case, newly appointed counsel would be required to
expend an inordinate amount of time and effort to prepare for
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further proceedings.

This Court will not impose upon the

federal government that additional and largely superfluous
expense.

Accordingly, the Court will not appoint new habeas

counsel nor will it allow present counsel to withdraw.
Counsel may, on petitioner’s behalf, file a reply
memorandum not to exceed 20 pages on or before April 29, 2016.
This case will then be decided on the papers.

If present

counsel determines that he is conflicted to the point where he
is unable to represent petitioner further, petitioner himself
may submit a reply memorandum, pro se, with the same page and
time limits applicable.
ORDER
For the foregoing reasons, petitioner’s motion for an
extension of time and to appoint new counsel (Docket No. 77) is
ALLOWED, in part, and DENIED, in part.
appointed.

New counsel will not be

Petitioner’s present counsel, or petitioner himself

acting pro se, may submit a reply memorandum, not to exceed 20
pages, on or before April 29, 2016.

So ordered.

/s/ Nathaniel M. Gorton ____
Nathaniel M. Gorton
United States District Judge
Dated March 1, 2016

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