Bolin v. McDaniel et al

Filing 115

ORDERED that P's # 105 Pro se motion to dismiss counsel is GRANTED. Saor Stetler is relieved as P's counsel. FURTHER ORD that this federal habeas proceeding (including the response to the pending # 108 Order to show cause) is STAYED pend ing appointment of new counsel. FURTHER ORD that P's # 97 Pro se motion for appointment of second counsel is DENIED as moot. Signed by Judge Miranda M. Du on 6/13/2012. ( Copy of Order mailed to pro se P at ESP on 6/13/2012. ) (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GREGORY D. BOLIN,

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Petitioner,

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vs.

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RENEE BAKER, et al.,

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Respondents.

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3:07-CV-00481-MMD-VPC
ORDER

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Petitioner Gregory Bolin has filed, pro se, a motion asking for the dismissal of his current

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counsel, Saor Stetler. ECF No. 105. In the alternative, Bolin asks to represent himself or, barring

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that, to voluntarily dismiss this action. Id. Stetler was appointed to represent Bolin when Bolin’s

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previous counsel, the Federal Public Defender’s office (FPD), was discharged based on a

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determination that the representation involved an irreconcilable conflict. ECF No. 34.

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On August, 10, 2011, the court denied Bolin’s prior motion for substitution of counsel based

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on the conclusion that Bolin had failed to establish a conflict of interest or an irreconcilable conflict

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of the type that calls for the appointment of substitute counsel. ECF No.86. Since that ruling,

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however, the posture of this case and the nature of the conflict between counsel and client has

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changed. In addition, the Supreme Court has identified the standard to be applied in addressing

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requests for new counsel under 18 U.S.C. § 3599, the statutory provision governing the appointment

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of counsel in capital cases brought under 28 U.S.C. § 2254. In Martel v. Clair, 132 S.Ct. 1276

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(2012), the Court held that courts must use an “interests of justice” standard to decide substitution

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motions brought under § 3599. 132 S.Ct. at 1284.

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The source of conflict between counsel and client is that Bolin wants this habeas proceeding

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to focus on guilt phase relief, while counsel insists on presenting all arguably meritorious claims,

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including unexhausted penalty-phase claims. In denying Bolin’s prior motion to dismiss counsel, the

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court identified Bolin’s primary grievance with respect to Stetler’s representation as counsel’s

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ongoing effort “to advance ‘unexhausted penalty-phase claims’ in this proceeding despite Bolin’s

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adamant and oft-expressed desire that such claims be deleted from his petition.” ECF No. 86, p. 2-3.

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Reasoning that the decision as to which claims to present is a matter of strategy left to discretion of

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counsel, the court concluded that Bolin had not established “a conflict of interest or an irreconcilable

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conflict of the type that warrants substitution of counsel.” Id., p. 3. The court also noted that “the

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court’s recent denial of an exhaustion stay will likely prevent counsel from continuing to press

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unexhausted claims.” Id.

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On September 27, 2011, this court entered an order ruling upon respondents’ motion to

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dismiss that identified the unexhausted claims in Bolin’s second amended petition. ECF No. 90.

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Prior to the entry of that order, the court had determined that Bolin is not entitled to stay and

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abeyance under Rhines v. Weber, 544 U.S. 269 (2005). ECF Nos. 77 and 80. The September 27

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order gave Bolin twenty days to abandon his unexhausted claims and warned him that failure to do

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so would result in the dismissal of his second amended petition pursuant to Rose v. Lundy, 455

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U.S. 509 (1982). Id. After counsel Stetler had requested and received two successive extensions of

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time within which to respond to the order, Bolin filed, pro se, a notice attempting to abandon his

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unexhausted claims and asking the court to appoint second counsel. ECF No. 96. The next day,

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counsel filed a motion seeking a third extension of time to respond the September 27 order and

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asking the court to schedule an ex parte hearing with respect to Bolin’s pro se submission. ECF No.

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97.

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The court granted the extension, setting January 30, 2012, as the new deadline to abandon

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unexhausted claims, and conducted an ex parte status hearing on January 12, 2012. ECF Nos. 99

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and 100. At that hearing, the court underscored the need to move this case along and avoid further

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delays. When the January 30 deadline arrived, however, Stetler filed, against Bolin’s repeatedly-

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expressed wishes, a fourth request for stay and abeyance. ECF No. 103. On February 16, 2012,

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Bolin filed the motion to dismiss counsel that is now before the court for decision. ECF No. 105.

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With his current motion, Bolin reiterates his vehement disagreement with Stetler’s failure to

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file a notice abandoning the unexhausted claims. He also advances several other grievances that,

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according to him, are further evidence of an irreconcilable conflict between counsel and himself.

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Included among them are allegations that counsel has avoided communication with him and has been

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dishonest with him, and that counsel’s refusal to abandon penalty phase claims is part of an agenda

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being carried out by the Nevada Federal Public Defender’s office.

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Counsel’s position throughout these proceedings has been that, under the ABA guidelines, he

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is required to investigate and present all arguably meritorious issues (including mitigation-based

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claims) regardless of his client’s wishes. See, e.g., Guidelines 10.7, 10.8, 10.11, and 10.15.1, ABA

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Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, (rev.

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ed. 2003), reprinted in 31 Hofstra L.Rev. 913, 1027 (2003). These guidelines have been employed

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by the U.S. Supreme Court as the standard for determining the level of reasonable performance for

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counsel in a capital case. See Rompilla v. Beard, 545 U.S. 374, 387 (2005), but see Bobby v. Van

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Hook, 130 S.Ct. 13, 17 (2009) (holding that ABA Guidelines are only evidence of what reasonably

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diligent attorneys would do, not “inexorable commands” with which all capital defense counsel must

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fully comply).

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On June 11, 2012, this court held an ex parte hearing to address Bolin’s motion to dismiss

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counsel. ECF No. 114. At that hearing, Stetler and Bolin were each given an opportunity to address

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the allegations contained in the motion. Having fully considered each party’s respective positions

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and the record of proceedings herein, the court shall grant Bolin’s motion to dismiss counsel.

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Counsel’s devotion to what he sees as his ethical obligation must not be discounted. The

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court finds that counsel has represented his client in a competent manner throughout these

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proceedings. At this point, however, the conflict between counsel and client is no longer about

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litigation strategy or what claims to advance. Instead, Bolin has become justifiably concerned that

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counsel’s actions may result in the dismissal of his case. In addition, it has become apparent that the

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chasm between client and counsel’s respective positions, together with the strength with which each

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is clinging to those positions, has resulted in a total breakdown in communication.

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Because the lack of communication between Bolin and Stetler will likely detract from

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counsel’s ability to pursue habeas relief on Bolin’s behalf, the interests of justice call for the

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dismissal of Stetler as Bolin’s counsel. See U.S. v. Walker, 915 F.2d 480, 483 (9th Cir. 1990)

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(concluding that the district court abused its discretion by denying defendant's motion for substitute

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counsel where disagreement over trial preparation and potential witnesses caused defendant to

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justifiably lose confidence in attorney and cease communication). In so deciding, the court reiterates

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its finding that Stetler has performed in accordance with professional standards in his representation

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of Bolin. Furthermore, the court recognizes that, because of ethical obligations to Bolin, counsel

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may have been constrained from presenting a more complete response to Bolin’s allegations.

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New counsel shall be appointed to represent Bolin. In light of the court’s decision to grant

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Bolin’s request to dismiss counsel and to appoint new counsel, the court need not reach Bolin’s

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request to represent himself or, barring that, to voluntarily dismiss this action.
IT IS THEREFORE ORDERED that petitioner’s pro se motion to dismiss counsel (ECF

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No. 105) is GRANTED. Saor Stetler is relieved as petitioner’s counsel.

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IT IS FURTHER ORDERED that this federal habeas proceeding (including the response to

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the pending order to show cause (ECF No. 108)) is STAYED pending appointment of new counsel.

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IT IS FURTHER ORDERED that petitioner’s pro se motion for appointment of second
counsel (ECF No. 97) is DENIED as moot.
DATED: June 13, 2012

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_________________________________________
UNITED STATES DISTRICT JUDGE

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