HURST v. BRANKER
Filing
122
MEMORANDUM ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 1/30/2019; that Petitioner's objections are sustained in part and overruled in part, and the Magistrate Judge's Memorandum Opinion and Order is AFFIRMED, except to the extent it relies on the statute of limitations. FURTHER that Petitioner's Motion for Appointment of "Martinez Counsel" (Doc. 112 ) is DENIED. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JASON WAYNE HURST,
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
EDWARD THOMAS, 1 Warden, Central
Prison, Raleigh, North Carolina,
Respondent.
1:10cv725
MEMORANDUM ORDER
On September 10, 2018, the United States Magistrate Judge
entered
a
Memorandum
Opinion
and
Order
(Doc.
118)
denying
Petitioner’s Motion for Appointment of “Martinez Counsel” (Doc.
112), which sought appointment of counsel to investigate (and raise
in an amended habeas corpus petition) any potential claims not
raised
in
Petitioner’s
prior
post-conviction
proceedings.
Petitioner filed objections (Doc. 119) to the Magistrate Judge’s
Order.
The
court
must
“modify
or
set
aside
any
part
of
the
[Magistrate Judge’s O]rder that is clearly erroneous or is contrary
to law.”
Fed. R. Civ. P. 72(a).
The court has appropriately
reviewed Petitioner’s objections and finds that the Magistrate
Judge’s Order is not clearly erroneous or contrary to law, except
1
Thomas is the present Warden of North Carolina’s Central Prison and
has been substituted as Respondent.
as to the statute of limitations issue.
The court therefore
affirms the Magistrate Judge’s Order, except as to the statute of
limitations issue.
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court
held that “[i]nadequate assistance of counsel at initial-review
collateral
proceedings
may
establish
cause
for
a
prisoner’s
procedural default of a claim of ineffective assistance at trial.”
Id. at 9.
Where a federal habeas petitioner sentenced to death in
state court is appointed the same counsel (pursuant to 18 U.S.C.
§
3599(a)(2))
as
the
petitioner
had
at
his
initial-review
collateral proceedings, however, a “clear conflict of interest”
arises.
Juniper v. Davis, 737 F.3d 288, 289 (4th Cir. 2013)
(quoting Gray v. Pearson, 526 F. App’x 331, 334 (4th Cir. 2013)
(unpublished)).
obligate
That is because such a situation would appear to
“[petitioner’s]
counsel
to
identify
and
investigate
potential errors that they themselves may have made in failing to
uncover ineffectiveness of trial counsel while they represented
[petitioner] in his state post-conviction proceedings.”
Id. at
289–90 (alterations in original) (quoting Gray, 526 F. App’x at
334).
As a result, the Fourth Circuit has held that:
[I]f a federal habeas petitioner is represented by the
same counsel as in state habeas proceedings, and the
petitioner requests independent counsel in order to
investigate and pursue claims under Martinez in a state
where the petitioner may only raise ineffective
assistance claims in an “initial review collateral
2
proceeding,” 2 qualified
ethically required.
and
independent
counsel
is
Id. at 290 (footnote added).
During the original pendency of Petitioner’s federal habeas
petition, filed in September 2010, Petitioner was represented by
the same counsel who handled his North Carolina initial review
collateral proceeding: Robert H. Hale, Jr. and Daniel J. Dolan.
(Docs. 1, 10.)
Although Martinez was decided in March 2012 and
the court did not rule on Petitioner’s habeas petition until March
2013, Petitioner did not request independent counsel.
In March
2013, the court entered summary judgment against Petitioner on all
thirteen of his claims, but granted a certificate of appealability
with respect to one — a juror misconduct claim.
Fourth
Circuit
reversed
on
the
juror
(Doc. 67.)
misconduct
claim
The
and
“remand[ed] for an evidentiary hearing to determine whether the
[misconduct] had a substantial and injurious effect or influence
on the jury’s verdict.”
(Doc. 79 at 2.)
In November 2015, after
the Supreme Court denied certiorari, the case was referred back to
the Magistrate Judge to carry out the Fourth Circuit’s mandate.
In December 2015, Elizabeth Hambourger was appointed as second
2
The Fourth Circuit has found that North Carolina — although “not
fall[ing] neatly within” this category — ultimately qualifies as such a
state. See Fowler v. Joyner, 753 F.3d 446, 462–63 (4th Cir. 2014).
3
counsel 3 for Petitioner.
(Doc. 95.)
In October 2017, Hambourger
filed the instant “Motion for Appointment of ‘Martinez Counsel.’”
(Doc. 112.)
The Magistrate Judge denied the motion as barred by
the mandate rule, as moot and/or untimely, and as futile in light
of the statute of limitations.
(Doc. 118.)
Petitioner now
objects.
Petitioner first argues that the mandate rule does not apply
here because the Martinez issue was not “expressly or impliedly
decided,” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), by
the Fourth Circuit.
(Doc. 119 at 5.)
“But the mandate rule
forecloses litigation of issues forgone on appeal or otherwise
waived, for example because they were not raised in the district
court.”
United States v. Pileggi, 703 F.3d 675, 679 (4th Cir.
2013) (internal quotation marks, emphasis, and ellipsis omitted).
Parties are “not permitted to ‘use the accident of a remand to
raise an issue that [they] could just as well have raised in the
first appeal.’”
Id. at 680 (ellipsis omitted) (quoting United
States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996)).
Since
Petitioner did not request independent counsel prior to this court
entering final judgment, and since the Fourth Circuit only remanded
the
case
for
further
consideration
3
of
Petitioner’s
juror
The court had previously granted Dolan’s motion to withdraw as
Petitioner’s counsel. Hale continued to represent Petitioner alongside
Hambourger. (Doc. 112 ¶¶ 3–4.)
4
misconduct claim, allowing an appointment of independent counsel
to pursue Martinez claims would permit Petitioner to use the
“accident of a remand” to pursue claims he could have pursued prior
to the court’s final judgment.
rule.
This runs afoul of the mandate
See Barnes v. Thomas, No. 1:08cv271, 2018 WL 3659016, at *9
(M.D.N.C. Aug. 2, 2018), appeal docketed, No. 18-5 (4th Cir. Sept.
4, 2018) (“To the extent Barnes’s motion for new counsel is
predicated on a desire to pursue a claim pursuant to Martinez,
such a claim is futile because it exceeds the scope of the Fourth
Circuit’s remand in this case.”).
Petitioner responds that he was not “in a position to request”
independent counsel during the original pendency of his habeas
case because he was not then represented by conflict-free counsel.
(Doc.
119
at
6.)
But
while
conflicted
as
to
actually
Dolan
and
investigating
Hale
or
were
bringing
certainly
Martinez
claims themselves, there is no reason they or Petitioner could not
have requested appointment of independent counsel to pursue such
claims during the year-long period between the Supreme Court’s
decision in Martinez and the court’s entry of summary judgment in
this case.
This is precisely the course of action taken by the
petitioner in Juniper.
(4th
Cir.
2014)
See Fowler v. Joyner, 753 F.3d 446, 465
(“Juniper’s
counsel
was
qualified,
but
not
independent, and therefore Juniper was in a position to argue that
5
his
appointed
counsel
operated
under
a
conflict
of
interest
entitling him to new counsel under [18 U.S.C.] § 3599.”).
The Fourth Circuit has been clear that petitioners are only
entitled to independent counsel “upon request,” id. at 463, and
therefore Petitioner’s argument — that he was unable to request
independent counsel previously because he did not already have
independent counsel at that time — is unpersuasive.
Where a
petitioner already has independent counsel, he has no need to
request it.
Where a petitioner does not have independent counsel,
he is entitled to such counsel only if he requests it.
See id.;
see
Martinez
also
id.
at
466
(declining
to
remand
for
a
investigation because “petitioner’s motion for new counsel in
light of Martinez[] should have been made in the first instance to
the
district
court”).
Because
Petitioner
failed
to
request
independent counsel to investigate potential Martinez claims prior
to the Fourth Circuit’s limited mandate in this case, his request
is now barred by the mandate rule. 4
4
Petitioner cites two cases for the proposition that Martinez counsel
may be appointed post-remand, but both are readily distinguishable. In
Morgan v. Lassiter, No. 12-6, ECF No. 19 (4th Cir. June 26, 2014)
(unpublished order), the Fourth Circuit itself “appoint[ed] Martinez
counsel” and then expressly “remand[ed] the case to the district court
to permit Martinez counsel to investigate and file any additional claims
in the district court.” Morgan, No. 12-6, at 1. Morgan therefore has
no bearing on whether the mandate rule precludes Martinez claims in a
case where the Fourth Circuit did not remand for the purpose of pursuing
Martinez claims. In the second case, Parker v. Joyner, No. 5:03-HC-966H, 2014 WL 6630108 (E.D.N.C. Nov. 21, 2014), Martinez was not decided
until years after the original final judgment and a Fourth Circuit remand
6
Petitioner also argues that the Magistrate Judge erred in his
alternative finding that — even if the mandate rule did not apply
— Petitioner’s request for independent counsel is both moot and
untimely.
As the Magistrate Judge points out, Petitioner has
already been appointed independent counsel in the form of Elizabeth
Hambourger, who represented Petitioner for 22 months post-remand
before belatedly raising the Martinez issue in the instant motion.
Petitioner’s
suggestion
that
Hambourger
or
other
independent
counsel should be now “appointed as ‘Martinez counsel’” (Doc. 112
at 2) evinces a misunderstanding of what so-called “Martinez
counsel” constitutes.
As the Fourth Circuit noted in Fowler v.
Joyner, 753 F.3d 446 (4th Cir. 2014), “there is no magic to the
term ‘Martinez counsel,’ which does not appear in Juniper.”
Id.
at
has
465.
Thus,
where
(as
here)
a
petitioner
already
“independent and conflict-free” counsel, there is no need for a
“special designation of ‘Martinez counsel.’”
Id.
In response, Petitioner argues that Hambourger needs this
sort of special designation because she “had no assurance of being
paid” for Martinez work “given the circumstances of her appointment
and the current posture of the case,” and that she was told by
on an unrelated issue.
The circumstances of Parker do not show a
petitioner using “a remand to raise an issue that [he] could just as
well have raised in the first appeal,” Pileggi, 703 F.3d at 680 (ellipsis
omitted) (quoting Parker, 101 F.3d at 528), since the petitioner could
not have raised a Martinez issue before Martinez was decided.
7
“the Fourth Circuit’s budgeting attorney . . . that she would not
be.”
(Doc. 119 at 12; Doc. 114 at 2).
As the Magistrate Judge
points out, however, nothing in Hambourger’s appointment limited
the scope of her compensable representation of Petitioner. 5
(Doc.
95.) Furthermore, even if the court accepted Petitioner’s argument
that Hambourger (or any other attorney) needs special designation
as
“Martinez
counsel”
before
pursuing
any
Martinez
claims,
Petitioner’s 22-month delay renders his request untimely.
The
Martinez
was
Court
went
to
great
pains
to
explain
that
it
recognizing an “equitable” — not a “constitutional” — exception to
procedural default, 566 U.S. at 16, and Petitioner admits that
“[i]n considering the availability of equitable relief,” the court
should consider “the amount of time that has passed.”
(Doc. 119
at 11.); see also Rhines v. Young, No. 5:00-CV-05020-KES, 2015 WL
4651090, at *8 (D.S.D. Aug. 5, 2015) (denying a petitioner’s
request for a stay to investigate possible Martinez claims on the
5
Petitioner’s objections are notably in tension with one another. As
to the mandate issue, he argues that the Fourth Circuit’s remand does
not limit his ability to pursue Martinez claims. As to the timeliness
issue, he argues that Hambourger has been somehow limited in her
compensable representation to the issue on remand, despite no indication
from this court that her appointment “to assist in [Petitioner’s]
representation in this case” was so limited. (Doc. 95.) If Petitioner
were correct that there is no impediment to his raising Martinez claims
post-remand, it is difficult to understand why his already-appointed
§ 3599 counsel should not be paid for work pursuant to those claims.
And
if,
as
Petitioner
also
argues,
Hambourger’s
compensable
representation has thus far been limited to the issue on remand, it is
because the Fourth Circuit’s mandate has limited the remainder of this
case to resolution of Petitioner’s juror misconduct claim.
8
alternative ground that he “did not seek leave to conduct the
investigation sought by his pending motion for . . . 15 months”
after habeas proceedings recommenced).
Petitioner has not explained why it took him nearly two years
after appointment of independent counsel (and over five years since
Martinez was decided) to raise a claim for Martinez counsel, and
as the Magistrate Judge reasons: If Hambourger became aware of the
alleged
payment
issue
early
on
in
her
representation,
“an
unreasonable delay then followed before the filing of the instant
Motion.”
alleged
(Doc. 118 at 16 n.11.)
payment
issue
already had occurred.”
only
And if she became aware of the
recently,
“an
unreasonable
delay
(Id.); see also Fowler, 753 F.3d at 463
(finding that the petitioner “had ample opportunity to pursue any
Martinez-based arguments” when he had independent counsel postMartinez for a year, and declining to remand for investigation of
Martinez issues because, inter alia, “[n]o explanation for this
delay has been offered”). 6
6
Petitioner argues that the Fowler court only meant to say that “the
petitioner should have requested Martinez counsel in district court” and
that he is therefore abiding by Fowler’s holding by requesting
independent counsel in this court.
(Doc. 119 at 10.)
But Fowler’s
repeated references to “delay” and the “substantial period of time”
during which the petitioner failed to “timely ma[ke]” a Martinez
argument, Fowler, 753 F.3d at 464–66, reveal that the undue passage of
time is relevant to whether the court should approve a late-blooming
attempt to investigate Martinez claims.
Further, Fowler expressly
disapproves of attempts to raise Martinez claims at the district court
level after an appeal of the district court’s final judgment:
9
Petitioner’s only argument in response is that the court
should disregard
the
passage
of
time
because
“[t]here
is
no
prejudice here” to Respondent given the pendency of Petitioner’s
jury misconduct claim.
This argument is unconvincing.
This case
has been pending in this court for over eight years, and the
additional investigation and possible inclusion of more claims —
as opposed to the court’s resolution of the single claim remanded
by the Fourth Circuit — would undoubtedly create further delay and
consume further resources.
Finally, Petitioner argues that the Magistrate Judge erred by
holding that — even if the mandate rule and the mootness and/or
untimeliness of Petitioner’s motion did not bar designation (more
accurately,
re-designation)
of
independent
counsel,
that
such
designation would be denied for futility because the one-year
statute of limitations period for federal habeas claims has already
run.
See 28 U.S.C. § 2244(d)(1).
Since the statute of limitations
is an affirmative defense, the burden normally rests with the
respondent to raise it.
See Rules Governing Section 2254 Cases in
Juniper did not grant a federal habeas petitioner and his
independent counsel any right, on appeal, to return to the
district court and conduct additional Martinez investigations
or to otherwise vary our normal rule that arguments such as
these, including a petitioner’s motion for new counsel in
light of Martinez, should have been made in the first instance
to the district court.
Id. at 466 (emphasis omitted).
10
the United States District Courts 5(b) (“The answer . . . must
state whether any claim in the petition is barred by . . . a
statute of limitations.”).
In Day v. McDonough, 547 U.S. 198
(2006), the Supreme Court held that “district courts are permitted,
but not obliged, to consider, sua sponte, the timeliness of a state
prisoner’s habeas petition.”
cautioned
district
courts
Id. at 209.
that
“[i]t
But the Supreme Court
would
be
an
abuse
of
discretion . . . for a court to override a State’s deliberate
waiver of a limitations defense.”
472–73 (2012).
Wood v. Milyard, 566 U.S. 463,
Instead:
Only where the State does not “strategically withh[o]ld
the [limitations] defense or cho[o]se to relinquish it,”
and where the petitioner is accorded a fair opportunity
to present his position, may a district court consider
the defense on its own initiative and “‘determine
whether the interests of justice would be better served’
by addressing the merits or by dismissing the petition
as time barred.”
Id. at 472 (alterations in original) (quoting Day, 547 U.S. at
210–11).
In the instant case, Respondent did not raise a limitations
defense in response to Petitioner’s Martinez motion (Doc. 113),
nor did it respond to Petitioner’s objections to the Magistrate
Judge’s findings.
As a result, in order to deny Petitioner’s
motion on the basis of the statute of limitations, the court would
have to determine that Respondent’s failure to raise a limitations
defense was accidental, rather than purposeful. Although the court
11
is hard-pressed to imagine a compelling “strategic[]” reason that
would have caused Respondent to forego a limitations defense yet
still
vigorously
oppose
Petitioner’s
motion, 7
there
is
no
indication that Respondents committed any “inadvertent error” in
failing to raise it.
Day, 547 U.S. at 211.
Unlike in Day, where
Respondent clearly “miscalculated” the untolled time as 352 days
instead of the actual 388 days, causing it to unintentionally
overlook a limitations defense, id. at 201–02, here it has been
the better part of a decade since the limitations period ended.
(Doc. 118 at 19.)
respond
to
Moreover, despite having an opportunity to
Petitioner’s
assertion
in
his
objections
to
the
Magistrate Judge’s findings that Respondent “made a deliberate
decision not to” invoke the limitations defense, Respondent did
not so respond.
As a result, the court declines to find that
Respondent’s failure to raise the statute of limitations was solely
the result of mistake or oversight.
To the extent the statute of
limitations was indicated as an alternative ground for denial of
Petitioner’s motion by the Magistrate Judge, the court does not
agree with that portion of the Magistrate Judge’s decision.
But
because the court agrees that Petitioner’s motion is barred by the
7
Petitioner theorizes that Respondent may have decided “to abandon the
statute of limitations defense due to a recognition of the heightened
reliability due capital cases,” or because of “the clarity of the Fourth
Circuit’s jurisprudence with regard to Martinez appointments.” (Doc.
119 at 8.)
12
mandate rule and as moot and/or untimely, Petitioner’s motion will
nevertheless be denied.
For all these reasons, therefore,
IT IS ORDERED that Petitioner’s objections are sustained in
part and overruled in part, and the Magistrate Judge’s Memorandum
Opinion and Order is AFFIRMED, except to the extent it relies on
the statute of limitations.
IT
IS
FURTHER
ORDERED
that
Petitioner’s
Motion
for
Appointment of “Martinez Counsel” (Doc. 112) is DENIED.
/s/
Thomas D. Schroeder
United States District Judge
January 30, 2019
13
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