LeBaron v. Gelb

Filing 34

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE:MOTION TO APPOINT DAVID C. GROSSACK, ESQ. AS STANDBY COUNSEL FOR LIMITED PURPOSE (DOCKET ENTRY # 7);MOTION TO RENAME CASE (DOCKET ENTRY # 32); AND ORDER TO SUPPLEMENT. Respo ndent is ORDERED to file the above documents and a supplemental memorandum to the motion to dismiss addressing the foregoing subjects on or before July 19, 2013. The motion for appointment of standby counsel (Docket Entry # 7) is DENIED. The motion to rename the case (Docket Entry # 32) is ALLOWED only insofar as Kelley Ryan is substituted for Bruce Gelb as the proper respondent. (Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NATHAN MARQUIS LEBARON,
Petitioner,
v.

CIVIL ACTION NO.
12-11829-RWZ

BRUCE GELB,
Superintendent,
Defendant.

MEMORANDUM AND ORDER RE:
MOTION TO APPOINT DAVID C. GROSSACK, ESQ. AS STANDBY
COUNSEL FOR LIMITED PURPOSE (DOCKET ENTRY # 7);
MOTION TO RENAME CASE (DOCKET ENTRY # 32);
AND ORDER TO SUPPLEMENT
June 20, 2013

BOWLER, U.S.M.J.
Petitioner Nathan Marquis LeBaron, an inmate at the
Massachusetts Correctional Institution in Shirley, Massachusetts
(“MCI-Shirley”), filed the above styled petition for habeas
corpus under 28 U.S.C. § 2254 (“section 2254”) attacking a June
2007 conviction in Massachusetts Superior Court (Essex County)
(“the trial court”).

On November 26, 2012, respondent Bruce Gelb

(“respondent”) filed a motion to dismiss the petition on the
basis that petitioner failed to exhaust his state court remedies.
(Docket Entry # 14).
I.

Order to Supplement
The petition raises various grounds for relief including a

denial of due process on the basis of excessive delays in the

production of state court transcripts and a denial of “speedy
trial appeal rights.”

(Docket Entry # 1).

A number of

petitioner’s recent filings attach documents from proceedings in
the Massachusetts Supreme Judicial Court (“the SJC”) and the
Massachusetts Appeals Court (“the appeals court”) that post date
the motion to dismiss.

(Docket Entry # 25-1, 32-1, 32-2).

In

order to evaluate the motion to dismiss and a number of
petitioner’s recent filings, the record needs to be expanded to
include updates to the existing docket sheets in the record of
the trial court (Docket Entry # 15-1, App. 1-18), the appeals
court (Docket Entry # 15-1, App. 24-27) and the SJC (Docket Entry
# 15-1, App. 30) (Docket Entry # 15-1, App. 32).

Respondent is

directed to file these as exhibits to a supplemental memorandum
filed on or before July 19, 2013, and address whether these
updates alter the exhaustion issue as presented in the motion to
dismiss.

Respondent is also instructed to file a copy of any

state court ruling reflected on the updated docket sheets in the
event it is relevant to the exhaustion analysis.
Respondent is further ordered to file a copy of the notice
of appeal docketed in the trial court on March 11, 2010 (Docket
Entry # 15-1, App. 14), and address the current status of that
appeal.

Respondent is also ordered to address the status of the

production, if any, of the alleged May 12, 2006 transcript
ordered on January 21, June 3 and December 1, 2010, and January

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25, 2011; and the status of the production, if any, of the
November 27, 2006 transcript ordered on January 21, 2010, and
January 25, 2011, and thereafter cancelled because the noticed
court reporter “was not steno on that date.”

(Docket Entry # 15-

1, App. 7, 14, 15, 16).
II.

Standby Counsel
Petitioner seeks appointment of David C. Grossack, Esq.

(“Attorney Grossack”) as standby counsel.

(Docket Entry # 7).

Petitioner requests the appointment to assist him in obtaining
transcripts and tape recordings in the state court proceedings
and submits an affidavit to support the request. (Docket Entry ##
7 & 12-2).

He does not provide an affidavit of indigency and is

not proceeding in forma pauperis.
There is no constitutional right to appointment of counsel
in a federal court to challenge a state court criminal
conviction.

Swazo v. Wyoming Department of Corrections State

Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994) (“there is
no constitutional right to counsel beyond the appeal of a
criminal conviction, and that generally appointment of counsel in
a § 2254 proceeding is left to the court’s discretion”); see
United States v. Williamson, 706 F.3d 405, 416 (4th Cir. 2013)
(“a petitioner has no Sixth Amendment right to counsel in order
to mount a collateral challenge to his conviction”); Simon v.
Government of the Virgin Islands, 679 F.3d 109, 115 (3rd Cir.

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2012) (noting that right to counsel “exists on direct appeal but
not in collateral proceedings”); Ellis v. U.S., 313 F.3d 636, 652
(1st Cir. 2002) (noting in section 2255 proceeding that
“convicted criminal has no constitutional right to counsel with
respect to habeas proceedings”); see also Morin v. State of Rhode
Island, 741 F.Supp. 32, 36 (D.R.I. 1990) (constitution does not
mandate representation after trial and first appeal).

There is

also no constitutional right to simultaneous representation by a
defendant and by standby counsel on direct appeal let alone
during a collateral attack on a state court conviction.

See

United States v. Bova, 350 F.3d 224, 226 (1st Cir. 2003) (“we
think it well to lay to rest any suggestion that Bova had a right
to represent himself and to enjoy the benefit of standby
appointed counsel”).

Appointment of counsel in a collateral

attack on a criminal conviction is therefore discretionary.1

See

Heath v. United States Parole Commission, 788 F.2d 85, 88 (2nd
Cir. 1986).
In particular, under 18 U.S.C. § 3006A(a)(2) (“section
3006A(a)(2)”), a court may appoint counsel for a “financially
eligible person seeking relief under section 2254 when the
interests of justice require.”

Battle v. Armontrout, 902 F.2d

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Appointment of counsel, however, is mandatory where the
district court conducts an evidentiary hearing. See Rule 8(c),
28 U.S.C. foll. § 2254; cf. Abdullah v. Norris, 18 F.3d 571, 573
(8th Cir. 1994) (appointment of counsel discretionary where no
evidentiary hearing required).
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701, 702 (8th Cir. 1990).

Section 3006A(a)(2) provides that:

(2) Whenever the United States magistrate judge or the court
determines that the interests of justice so require,
representation may be provided for any financially eligible
person who-- . . .
(B) is seeking relief under section 2241, 2254, or 2255
of title 28.
18 U.S.C. § 3006A(a)(2).
The rare cases warranting appointment of counsel in the
interests of justice, however, typically involve nonfrivolous
claims with factually and/or legally complex issues and a
petitioner who is severely hampered in his ability to investigate
the facts.

See United States v. Mala, 7 F.3d 1058, 1063-1064

(1st Cir. 1993) (discussing application of section 3006A(a)(2) to
section 2255 motion, noting coalescence of the three
aforementioned circumstances and citing Battle v. Armontrout, 902
F.2d at 702, a section 2254 case); Battle v. Armontrout, 902 F.2d
at 702 (remanding section 2254 petition for appointment of
counsel where claim was nonfrivolous, facts and law were complex
and the petitioner’s incarceration severely hampered his
investigative abilities); see also Abdullah v. Norris, 18 F.3d
571, 573 (8th Cir. 1994) (where the petitioner presents
nonfrivolous claim, court should consider legal and factual
complexity of case and the petitioner’s ability to investigate in
appointing counsel under section 3006A(a)(2)).
Here, the issues are not factually or legally complex.

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Petitioner is also not financially eligible for appointment of
standby counsel.

This case therefore does not warrant

appointment of Attorney Grossack as standby counsel.
III.

Proper Custodian
At the time petitioner filed this petition, he was an inmate

at the Souza Baranowski Correctional Center in Shirley.

The

superintendent of petitioner’s current facility, MCI-Shirley, is
Kelly Ryan.

Petitioner therefore moves to name Ryan as the

proper respondent.

(Docket Entry # 32).

Section 2243 of Title 28 of the United States Code mandates
that a section 2254 petition “be directed to the person having
custody of the person detained.”

28 U.S.C. § 2243.

See also 28

U.S.C. § 2242 (habeas application “shall allege . . . the name of
the person who has custody over [the petitioner]”).

The

requirement effectuates the purpose in section 2243 which
additionally requires “the person to whom the writ is directed .
. . ‘to produce at the hearing the body of the person detained.’”
Vasquez v. Reno, 233 F.3d 688, 693 (1st Cir. 2000).

It is the

warden or the superintendent of the facility in which the
petitioner is held who has the “day-to-day control over the
petitioner and is able to produce [the petitioner] before the
habeas court.”

Id. at 691.

Accordingly, a petitioner’s “proper

custodian for purposes of habeas review is the warden of the
facility where he is being held.”

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Vasquez v. Reno, 233 F.3d 688,

691 (1st Cir. 2000).

The motion to name Ryan as respondent

(Docket Entry # 32) is therefore allowed.

See, e.g., Smith v.

Roper, 2011 WL 8169081, *10 (E.D.Mo. Dec. 12, 2011) (allowing
motion to substitute former custodian with current custodian in
section 2254 proceeding); Short v. Tranni, 2011 WL 1344242, 82
(D.Colo. April 8, 2011) (allowing motion to change respondent due
to inmate’s recent transfer).
CONCLUSION
Respondent is ORDERED to file the above documents and a
supplemental memorandum to the motion to dismiss addressing the
foregoing subjects on or before July 19, 2013.

The motion for

appointment of standby counsel (Docket Entry # 7) is DENIED.
motion to rename the case (Docket Entry # 32) is ALLOWED only
insofar as Kelley Ryan is substituted for Bruce Gelb as the
proper respondent.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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