Bolin v. McDaniel et al

Filing 86

ORDER. IT IS ORDERED that P's 81 pro se motion to dismiss counsel is DENIED. Signed by Judge Roger L. Hunt on 8/10/2011. (Copies have been distributed pursuant to the NEF - PM)

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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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E.K. McDANIEL, et al.,

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Respondents.

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

Petitioner Gregory Bolin has filed, pro se, a motion seeking substitution of counsel. Docket

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#81. Bolin is currently represented by Saor Stetler in this capital habeas action. Mr. Stetler was

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appointed to represent Bolin when Bolin’s previous counsel, the Federal Public Defender’s office

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(FPD), was discharged based on a determination that the representation involved an irreconcilable

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conflict. Docket #34.

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By statute, an indigent habeas petitioner asking the federal court to vacate or set aside a death

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sentence is afforded a mandatory right to legal counsel and related services. 18 U.S.C. § 3599(a)(2).

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Although there is no constitutional right to the appointment of counsel in habeas corpus cases

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(Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)), there is case law that suggests that, in some

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respects, the statutory right to counsel in a federal habeas proceeding is on equal footing with a

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defendant’s Sixth Amendment right to counsel in a criminal trial. See McFarland v. Scott, 512 U.S.

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849 (1994). Indeed, both the Eighth and Tenth Circuits have held that § 3599(a)(2) (previously

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codified at 21 U.S.C. § 848(q)(4)(B)) implicates the same “substitution-of-counsel standards” as

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does the Sixth Amendment. See Johnson v. Gibson, 169 F.3d 1239, 1254 (10th Cir. 1999); Hunter v.

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Delo, 62 F.3d 271, 274 (8th Cir.1995).

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Even where the Sixth Amendment guarantees appointed counsel, however, an indigent

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defendant is not entitled to counsel of his own choosing. Wheat v. United States, 486 U.S. 153, 159

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(1988). In Johnson, the court noted that for a petitioner in a capital habeas case to obtain a

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substitution of counsel, he must “show good cause, such as a conflict of interest, a complete

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breakdown of communication or an irreconcilable conflict which leads to an apparently unjust

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verdict.” Johnson, 169 F.3d at 1254 (quoting United States v. Padilla, 819 F.2d 952, 955 (10th

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Cir.1987). In Hunter, the court noted that a criminal defendant’s request for new counsel implicates

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conflicting factors – “the need to ensure effective legal representation, the need to thwart abusive

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delay tactics, and the reality that an accused is often genuinely unhappy with appointed counsel who

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is nonetheless doing a good job.” Hunter, 62 F.3d at 274

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Accordingly, the court in Hunter held that the standards for granting substitute counsel for a
capital habeas petitioner are strict:
[S]ubstitution of counsel is a matter committed to the sound discretion of the district
court. To warrant substitute counsel, a defendant must show justifiable
dissatisfaction with appointed counsel [such as] a conflict of interest, an
irreconcilable conflict, or a complete breakdown in communication between the
attorney and the defendant. The defendant's right to counsel, however, does not
involve the right to a “meaningful relationship” between an accused and his counsel.

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Id. (quoting United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992)). In the context of

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addressing motions for new counsel, the Ninth Circuit generally defines a conflict of interest as “the

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existence of competing interests potentially affecting counsel's capacity to give undivided loyalty to

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his client's interests;” while an irreconcilable conflict refers to a dispute or difference between a

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client and his lawyer. U.S. v. Moore, 159 F.3d 1154, 1158 (9th Cir.1998).

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Bolin’s primary grievance with respect to Stetler’s representation is that Stetler continued to
advance “unexhausted penalty-phase claims” in this proceeding despite Bolin’s adamant and oft-

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expressed desire that such claims be deleted from his petition. As a practical matter, the court’s

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recent denial of an exhaustion stay will likely prevent counsel from continuing to press unexhausted

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claims. Even so, Bolin insists that his relationship with Stetler is marred by both a conflict of

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interest and an irreconcilable conflict.

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The Supreme Court has held that a criminal defendant is given the “ultimate authority” to

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make certain fundamental decisions regarding his case (such as whether to plead guilty, waive a jury,

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testify on one’s own behalf, take an appeal, or represent oneself), but that matters of tactics and

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strategy, including which claims are to be presented on appeal, are left to the discretion of counsel.

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Jones v. Barnes, 463 U.S. 745, 751 (1983). Because of the complexity of capital habeas litigation

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and the seriousness of the possible penalty, a capital habeas petitioner’s autonomy with respect to the

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management of his case is arguably even more limited than that of a criminal defendant.

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As such, Bolin’s dissatisfaction with counsel, while perhaps justifiable from his personal

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perspective, does not establish a conflict or interest or an irreconcilable conflict of the type that

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warrants substitution of counsel.

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IT IS THEREFORE ORDERED that petitioner’s pro se motion to dismiss counsel (docket
#81) is DENIED.
DATED: August 10, 2011.

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_________________________________________
UNITED STATES DISTRICT JUDGE

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