Lucien v. Spencer

Filing 134

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER In view of the foregoing, it is hereby ORDERED that: 1. Ms. Fray-Witzer is DISCHARGED as Lucien's counsel. 2. Susan Church, Esq. is APPOINTED as Lucien's successor counsel. 3. Ms. Fra y-Witzer shall work with Ms. Church to achieve an efficient transition that will minimize the duplication of effort by Ms. Church. Cf. Mass. R. Prof'l Conduct 1.16(d)-(e). 4. By May 23, 2014, Ms. Church shall file a supplemental memorandum in compliance with the March 22, 2013 Memorandum and Order. 5. By April 14, 2014, Ms. Church shall file an interim report describing the status of her efforts to comply with paragraph 4 hereinabove and, if necessary, request a reasonable extension of the May 23, 2014 deadline. 6. Respondent shall respond to Lucien's supplemental memorandum by June 30, 2014. 7. Any reply shall be filed by July 22, 2014. 8. A hearing will be held on August, 18, 2014, at 2:30 p.m. 9. Respondent's Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(b) (Docket No. 122) is DENIED. 10. If necessary and appropriate, Ms. Church may file a motion to submit the state record, in whole or in part, in electronic form. But see LR, D. Mass. 5.4(G)(1)(e) ("the state court record in proceedings under 28 U.S.C. §2254" is a document that "must not be filed electronically"). 11. This case is otherwise STAYED until May 23, 2014.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES LUCIEN,
Petitioner,

)
)
)
)
)
)
)

v.
LUIS SPENCER,
Respondent.

Civ. A. No. 07-11338-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

At

March 24, 2014

the

March

21,

2014

hearing,

the

court

ordered

that

Sharon Fray-Witzer, Esq. be replaced as appointed counsel for
petitioner James Lucien. This Memorandum and Order reiterates
the

reasons

for

that

decision

and

the

court's

resulting

instructions, as previously stated in court.

I.

BACKGROUND
On November 28, 1995, in Suffolk Superior Court, petitioner

James Lucien was convicted on one count of first degree murder,
two counts of armed robbery, and one count of illegal possession
of a firearm. He was sentenced to life in prison. Except for one
count

of

armed

Massachusetts

robbery,

Supreme

his

conviction

Judicial

Court.

was

affirmed

by

the

See

Commonwealth

v.

Lucien, 801 N.E.2d 247 (Mass. 2004).
On July 20, 2007, Lucien filed a petition for a writ of
habeas

corpus

under

28

U.S.C.

§2254,

asserting,

among

other

things, that: (a) the trial court failed to instruct the jury
that it should not consider the guilty plea of a cooperating
witness

as

evidence

of

Lucien's

guilt;

(b)

Lucien's

trial

counsel failed to inform Lucien, before Lucien waived his right
to testify at trial, that the prosecution had agreed not to
introduce Lucien's past conviction for armed assault and battery
into evidence even if Lucien were to testify; and (c) trial
counsel failed to call two expert witnesses to testify because,
among other reasons, he did not wish to interrupt their holiday
vacations.
Lucien
pointing

also

to

the

filed

a

Motion

complexity

of

for
the

Appointment
issues

of

entailed

Counsel,
by

his

petition and asserting that he suffers from a cognitive disorder
that

impairs

his

ability

to

comprehend

reading

material.

On

February 17, 2008, the court denied the Motion for Appointment
of Counsel without prejudice.
After

receiving

additional

briefing,

however,

the

court

determined that counsel should be appointed. In a Memorandum and
Order issued March 22, 2013, the court stated that "Lucien has
made

a

commendable

effort

to

present

the

complex

legal

and

factual issues raised in his habeas petition," but that "it is
in the interest of justice to appoint counsel for [Lucien] to
brief

further

and

argue

the

most
2

complicated

issues

in

this

case." See Lucien v. Spencer, Civ. A. No. 07-11338-MLW, 2013 WL
1212895, at *3 (D. Mass. Mar. 22, 2013). The court, therefore,
ordered

that

eligible,

counsel

and

that

be

appointed,

appointed

if

Lucien

counsel

file

is

financially

a

supplemental

memorandum on Lucien's behalf.
The March 22, 2013 Memorandum and Order described in detail
some of the complex issues that would need to be addressed in
counsel's

supplemental

concern:

(a)

cognizable

memorandum.

whether

bases

for

Lucien's
habeas

In

essence,

various

relief;

these

claims

(b)

whether

issues

represent
they

were

exhausted in the state courts; (c) whether they were adjudicated
on

the

merits

by

the

state

courts;

(d)

whether

they

were

procedurally defaulted; (e) whether any procedural default can
be

excused

by

demonstration

a

showing

that

of

failure

to

cause

and

consider

prejudice,
Lucien's

or

claims

by

a

would

result in a fundamental miscarriage of justice; and (f) whether
determinations
unreasonable,

of
or

fact
are

made

by

contradicted

the
by

state
clear

courts
and

were

convincing

evidence. The court added that Lucien's appointed counsel may
also present additional arguments that have not been adequately
addressed in prior submissions.
Lucien

was

deemed

to

be

financially

eligible

for

the

appointment of counsel. On April 16, 2013, Ms. Fray-Witzer, who
3

was

randomly

available

selected

to

represent

from

the

habeas

court's

list

petitioners,

of

was

attorneys

appointed

as

Lucien's counsel.

II.

APPOINTED COUNSEL'S FAILURE TO COMPLY WITH COURT ORDERS
Lucien's supplemental memorandum was initially due by May

24,

2013.

On

May

25,

2013,

Ms.

Fray-Witzer

moved

for

an

extension of time until June 21, 2013, stating that she was
still in the process of fully collecting and processing Lucien's
files.

The

motion

was

allowed,

and

a

revised

schedule

was

issued. See May 28, 2013 Order; June 4, 2013 Order.
On the new deadline date, June 21, 2013, Ms. Fray-Witzer
again

moved

nearing

for

an

completion"

extension,
of

her

stating

efforts

that
to

she

collect

was
and

"finally
review

Lucien's files. The motion was allowed. As requested, July 19,
2013 was set as the revised deadline for Lucien's supplemental
memorandum. See June 27, 2013 Order.
On July 19, 2013, Ms. Fray-Witzer sought a third extension
of the deadline, this time until October 20, 2013. She explained
that the procedural history of the case had turned out to be
more complex than she had initially anticipated, and described
her efforts to obtain a complete record from Suffolk Superior
Court. The motion for an extension was allowed. See Aug. 2, 2013
Order.
4

The October 20, 2013 deadline elapsed. No filing was made
on Lucien's behalf, however, until November 20, 2013, when Ms.
Fray-Witzer sought a fourth extension, this time until December
20,

2013.

Ms.

Fray-Witzer

explained

that

she

"continues

to

struggle with record collection." The court allowed the motion,
stating that "[n]o further extension [would] be granted except
for very good cause shown." Dec. 5, 2013 Order.
On December 20, 2013, Ms. Fray-Witzer moved for a fifth
extension, now seeking a deadline of January 20, 2014. The court
allowed the motion, stating that "[n]o further extension will be
granted."

The

deadline

for

respondent's

response

to

Lucien's

memorandum was set for February 20, 2014, and a hearing was
scheduled for March 21, 2014. See Dec. 26, 2013 Order.
On January 21, 2014, Ms. Fray-Witzer submitted a memorandum
on

Lucien's

behalf,

captioned

"Appointed

Counsel's

Preliminary/Introductory Memorandum on Issues of Concern." This
memorandum outlined briefly the procedural and factual history
of the case, and stated that "[w]ith more time for counsel to
prepare his legal arguments, counsel can now show that he either
has met, or can meet, the Courts' cited standards for hearing
and

discovery."

issues
Lucien.

that
Ms.

had

The

memorandum

prompted

Fray-Witzer

did

not

address

the

court

to

appoint

counsel

filed,

on

the

also

5

January

22,

complex
for

2014,

a

Motion to File and Serve State Court Record on Computer Disks in
Lieu

of

Hard

containing

the

Copy,

explaining

state

court

that

record

an

is

too

electronic
large

to

document
be

filed

electronically through the CM/ECF system.
On February 7, 2014, respondent filed a motion to dismiss
Lucien's petition for failure to prosecute.
In a Memorandum and Order issued February 14, 2014, the
court described Ms. Fray-Witzer's repeated failures to comply
with its orders, and stated that at the March 21, 2014 hearing,
the

court

would

"address

whether

Ms.

Fray-Witzer

shall

be

discharged as counsel for Lucien and, in any event, whether and
how this case should proceed." Id. at 8. The court ordered that
Lucien attend the March 21, 2014 hearing. Respondent was excused
from

responding

to

the

"Preliminary/Introductory

Memorandum"

filed by Ms. Fray-Witzer.
On

February

20,

2014,

Lucien

himself

filed

a

motion

requesting that the court order Ms. Fray-Witzer to "show cause
for her refusal to inform him of the progress of his case."
Lucien attached to his motion a collection of letters that he
had mailed to Ms. Fray-Witzer and that had not, he asserted,
been answered. As an alternative request, Lucien suggested that
the court "consider whether a new lawyer should be appointed."
Lucien

had

previously

made

two
6

submissions

that

presented

similar complaints. See Motion for Leave to Stay Proceedings
(Docket No. 106); Letter from James Lucien to the Court (Docket
No. 113). 1
On March 21, 2014, the day of the hearing, Ms. Fray-Witzer
filed, without seeking leave to do so: a Supplemental Memorandum
on Issues of Concern; and a Motion to Expand the Record. She
also

sought

to

submit,

on

a

USB

flash

drive,

an

electronic

version of the state court record.
At the March 21, 2014 hearing, Ms. Fray-Witzer expressed
her regret at failing to comply with the court's orders. She
represented

that

she

would,

if

necessary,

facilitate

an

efficient transfer of the case to a new attorney. Lucien left to
the

court's

discretion

the

question

of

whether

his

counsel

should be replaced. Respondent, too, took no position on that
question, but noted that respondent would likely object to the
submission of record materials that had not been included in
respondent's

previously

filed

supplemental

answer

to

Lucien's

petition.

1

At the March 21, 2014 hearing, the court was informed
that Ms. Fray-Witzer had conducted two interviews with Lucien
and had responded to some, though not all, of his letters.
7

III. DISCUSSION
The

court

first

addressed

Ms.

Fray-Witzer's

failures

to

comply with its orders in the February 14, 2014 Memorandum and
Order. The court stated that:
after five extensions and over nine months of work,
Lucien's appointed counsel has failed to comply with
the instructions provided in the March 22, 2013
Memorandum and Order. The development and evaluation
of Lucien's claims have not progressed appreciably,
and the court's ability to decide this case on the
merits has been frustrated.
Feb. 14, 2014 Mem. & Order at 7. These observations remain true.
In recognition of the complexity of this case, the court has
liberally granted extensions of the time limits it imposed. Ms.
Fray-Witzer repeatedly failed to meet the deadlines that she
herself

requested.

She

repeatedly

sought

extensions

at

unreasonably late dates. As a result, the progress of this case
has been impeded. In addition, even the unauthorized filings
made by Ms. Fray-Witzer on the day of the hearing do not appear
to address fully the complex legal issues outlined by the court
in the March 22, 2013 Memorandum and Order.
As the First Circuit has explained, it would be "folly" to
"treat[]

case-management

orders

as

polite

suggestions

rather

than firm directives." Mulero-Abreu v. Puerto Rico Police Dept.,
675

F.3d

88,

89

(1st

Cir.

2012).
8

A

litigant's

conduct

that

amounts to "arrogat[ing] control" of the schedule should not be
"condoned
Hosp.,

by

704

a

slap

F.2d

failures to

on

12,

comply

the

16

with

wrist."

(1st
the

Cir.

court's

Damiani
1983).

v.

Rhode

Ms.

orders

Island

Fray-Witzer's

have

injured

the

court's ability to discharge its obligation to manage its busy
docket fairly and efficiently.
More

importantly,

these

failures

to

comply

with

court

orders have potentially prejudiced Lucien. As the court stated
in the March 22, 2013 Memorandum and Order, in view of the
complex

issues

entailed

by

Lucien's

petition,

it

is

in

the

interest of justice for him to be effectively represented by
appointed

counsel.

The

court

now

finds

that

the

interest

of

justice would be best served by discharging Ms. Fray-Witzer and
appointing successor counsel.

IV.

ORDER
In view of the foregoing, it is hereby ORDERED that:
1.

Ms. Fray-Witzer is DISCHARGED as Lucien's counsel.

2.

Susan Church, Esq. is APPOINTED as Lucien's successor

counsel.
3.

Ms. Fray-Witzer shall work with Ms. Church to achieve

an efficient transition that will minimize the duplication of
effort by Ms. Church. Cf. Mass. R. Prof'l Conduct 1.16(d)-(e).

9

4.

By May 23, 2014, Ms. Church shall file a supplemental

memorandum in compliance with the March 22, 2013 Memorandum and
Order.
5.
report

By April 14, 2014, Ms. Church shall file an interim
describing

the

status

of

her

efforts

to

comply

with

paragraph 4 hereinabove and, if necessary, request a reasonable
extension of the May 23, 2014 deadline.
6.

Respondent

shall

respond

to

Lucien's

supplemental

memorandum by June 30, 2014.
7.

Any reply shall be filed by July 22, 2014.

8.

A hearing will be held on August, 18, 2014, at 2:30

9.

Respondent's

p.m.
Motion

to

Dismiss

Pursuant

to

Fed.

R.

Civ. P. 41(b) (Docket No. 122) is DENIED.
10.

If necessary and appropriate, Ms. Church may file a

motion to submit the state record, in whole or in part, in
electronic form. But see LR, D. Mass. 5.4(G)(1)(e) ("the state
court record in proceedings under 28 U.S.C. §2254" is a document
that "must not be filed electronically").
11.

This case is otherwise STAYED until May 23, 2014.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

10