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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 GREGORY D. BOLIN, 10 Petitioner, 11 vs. 12 E.K. McDANIEL, et al., 13 Respondents. 14 15 ) ) ) ) ) ) ) ) ) ) / 3:07-CV-00481-RLH-VPC ORDER Petitioner Gregory Bolin has filed, pro se, a motion seeking substitution of counsel. Docket 16 #81. Bolin is currently represented by Saor Stetler in this capital habeas action. Mr. Stetler was 17 appointed to represent Bolin when Bolin’s previous counsel, the Federal Public Defender’s office 18 (FPD), was discharged based on a determination that the representation involved an irreconcilable 19 conflict. Docket #34. 20 By statute, an indigent habeas petitioner asking the federal court to vacate or set aside a death 21 sentence is afforded a mandatory right to legal counsel and related services. 18 U.S.C. § 3599(a)(2). 22 Although there is no constitutional right to the appointment of counsel in habeas corpus cases 23 (Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)), there is case law that suggests that, in some 24 respects, the statutory right to counsel in a federal habeas proceeding is on equal footing with a 25 defendant’s Sixth Amendment right to counsel in a criminal trial. See McFarland v. Scott, 512 U.S. 26 849 (1994). Indeed, both the Eighth and Tenth Circuits have held that § 3599(a)(2) (previously 1 codified at 21 U.S.C. § 848(q)(4)(B)) implicates the same “substitution-of-counsel standards” as 2 does the Sixth Amendment. See Johnson v. Gibson, 169 F.3d 1239, 1254 (10th Cir. 1999); Hunter v. 3 Delo, 62 F.3d 271, 274 (8th Cir.1995). 4 Even where the Sixth Amendment guarantees appointed counsel, however, an indigent 5 defendant is not entitled to counsel of his own choosing. Wheat v. United States, 486 U.S. 153, 159 6 (1988). In Johnson, the court noted that for a petitioner in a capital habeas case to obtain a 7 substitution of counsel, he must “show good cause, such as a conflict of interest, a complete 8 breakdown of communication or an irreconcilable conflict which leads to an apparently unjust 9 verdict.” Johnson, 169 F.3d at 1254 (quoting United States v. Padilla, 819 F.2d 952, 955 (10th 10 Cir.1987). In Hunter, the court noted that a criminal defendant’s request for new counsel implicates 11 conflicting factors – “the need to ensure effective legal representation, the need to thwart abusive 12 delay tactics, and the reality that an accused is often genuinely unhappy with appointed counsel who 13 is nonetheless doing a good job.” Hunter, 62 F.3d at 274 14 15 16 17 18 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. 19 20 Id. (quoting United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992)). In the context of 21 addressing motions for new counsel, the Ninth Circuit generally defines a conflict of interest as “the 22 existence of competing interests potentially affecting counsel's capacity to give undivided loyalty to 23 his client's interests;” while an irreconcilable conflict refers to a dispute or difference between a 24 client and his lawyer. U.S. v. Moore, 159 F.3d 1154, 1158 (9th Cir.1998). 25 26 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- 2 1 expressed desire that such claims be deleted from his petition. As a practical matter, the court’s 2 recent denial of an exhaustion stay will likely prevent counsel from continuing to press unexhausted 3 claims. Even so, Bolin insists that his relationship with Stetler is marred by both a conflict of 4 interest and an irreconcilable conflict. 5 The Supreme Court has held that a criminal defendant is given the “ultimate authority” to 6 make certain fundamental decisions regarding his case (such as whether to plead guilty, waive a jury, 7 testify on one’s own behalf, take an appeal, or represent oneself), but that matters of tactics and 8 strategy, including which claims are to be presented on appeal, are left to the discretion of counsel. 9 Jones v. Barnes, 463 U.S. 745, 751 (1983). Because of the complexity of capital habeas litigation 10 and the seriousness of the possible penalty, a capital habeas petitioner’s autonomy with respect to the 11 management of his case is arguably even more limited than that of a criminal defendant. 12 As such, Bolin’s dissatisfaction with counsel, while perhaps justifiable from his personal 13 perspective, does not establish a conflict or interest or an irreconcilable conflict of the type that 14 warrants substitution of counsel. 15 16 17 IT IS THEREFORE ORDERED that petitioner’s pro se motion to dismiss counsel (docket #81) is DENIED. DATED: August 10, 2011. 18 19 _________________________________________ UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 3

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