Drummond v. Houk
Memorandum Opinion and Order regarding petitioner's motion for authorization to appear in ancillary state court litigation. This death penalty habeas case has been closed since June 30, 2016, and any new state proceedings are not a subsequent stage within the meaning of the relevant statute. Accordingly, the motion for authorization to appear in ancillary state court litigation (Doc. No. 123 ) is denied. Judge Sara Lioi on 2/22/17. (S,HR)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CASE NO. 4:07-cv-1776
JUDGE SARA LIOI
The above-captioned capital habeas case was initiated on June 15, 2007 and, after full
proceedings, including those before the Supreme Court of the United States, the case was
terminated on June 30, 2016 by Order and Judgment Entry denying and dismissing the petition.
(See Doc. No. 122.)
Now before the Court is petitioner’s motion under 18 U.S.C. § 3599(e) to authorize his
formerly-appointed federal habeas counsel to appear in new “ancillary” state court litigation.
(Doc. No. 123.) The motion represents that, on January 12, 2017, pursuant to Ohio Rev. Code §
2953.23, petitioner filed a second petition in state court to vacate or set aside his sentence on the
strength of what petitioner claims is a new and retroactively-applied federal right set forth in
Hurst v. Florida, __ U.S. __, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016) (requiring a defendant’s
death sentence to be based on a jury verdict, not a judge’s fact-finding). 1 By way of the instant
Although the Court need not decide the issue for purposes of the instant motion, this Court does not agree that the
law in Hurst is new, see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)
(holding that any fact that increases the penalty for a crime beyond the statutory maximum, other than the fact of a
prior conviction, must be submitted to the jury and proved beyond a reasonable doubt), nor is it clear that Hurst is to
be retroactively applied for purposes of collateral review. See Gapen v. Bobby, No. 3:08-cv-280, 2017 WL 661493,
at *4-5 (S.D. Ohio Feb. 17, 2017) (Merz, M.J.) (“Hurst does not apply to cases in which the conviction became final
on direct appeal before January 2016”).
motion, petitioner “seeks authorization for undersigned counsel [federal public defender] to
litigate this claim in state court in anticipation of further federal habeas proceedings.” (Doc. No.
123 at 8635.) 2 The motion asserts that since, in Ohio, “appointment of counsel is required only in
the case of a timely-filed first petition for post-conviction relief[,]” (Motion at 8637, quoting
State v. Conway, No. 12AP-412, 2013 WL 4679318, at *13 (Ohio Ct. App. Aug. 29, 2013)),
adequate state representation is not available to petitioner.
Respondent opposes the motion (see Doc. No. 124), arguing that this Court has no
jurisdiction since the case is closed and the new state court proceedings do not constitute a
“subsequent stage” of the original habeas proceedings within the meaning of the statute
authorizing appointment of federal counsel. Respondent asserts that “§ 3599 funding is not
authorized to initiate new state court proceedings.” (Id. at 8642.)
The Criminal Justice Act provides for appointed federal counsel to represent a party “at
every stage of the proceedings from his initial appearance … through appeal, including ancillary
matters appropriate to the proceedings.” 18 U.S.C. § 3006A(c). In addition,
[i]n any post-conviction proceeding under [28 U.S.C. § 2254] seeking to vacate or
set aside a death sentence, any defendant who is or becomes financially unable to
obtain adequate representation or investigative, expert, or other reasonably
necessary services shall be entitled to the appointment of one or more attorneys
and the furnishing of such other services in accordance with subsections (b)
18 U.S.C. § 3599(a)(2). Section 3599(e), covering the duties of federally appointed counsel,
specifies that counsel shall continue to represent the defendant “throughout every subsequent
stage of available judicial proceedings, including … all available post-conviction process[.]” The
All page number references are to the page identification number generated by the Court’s electronic docketing
issue, then, is whether petitioner’s “ancillary” state court proceedings constitute a “subsequent
stage” of his original habeas proceedings, during which he had appointed counsel.
Petitioner relies primarily upon select language in a footnote in Harbison v. Bell, 556
U.S. 180, 190, 129 S. Ct. 1481, 173 L. Ed. 2d 347 (2009), and broadly suggests that § 3599 vests
district courts with discretion to determine on a case-by-case basis whether a federally appointed
counsel may represent a defendant in state court. But in Harbison the Supreme Court observed
that while “[s]tate habeas is not a stage ‘subsequent’ to federal habeas[,]” id. at 189 (and
therefore would not entitle a defendant to federally appointed counsel), since “state
postconviction litigation sometimes follows the initiation of federal habeas [where] a petitioner
has failed to exhaust[,]” id. at 190—and here’s the footnote—“a district court may determine on
a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of
her federal habeas representation.” Id. at 190, n.7 (quoting § 3599(e) (emphasis added)). 3 The
Supreme Court then observed (in that same footnote) that “[t]his is not the same as classifying
state habeas proceedings as ‘available post-conviction process’ within the meaning of the
statute.” Id. Thus, Harbison does not cast as wide a net as the petitioner suggests.
The somewhat limited discretionary reach of a district court to appoint federal counsel in
a state habeas case is illustrated in Irick v. Bell, 636 F.3d 289 (6th Cir. 2011), the case upon
which the respondent relies in opposition to the motion, wherein the court rejected application of
Harbison to a situation where a defendant wanted federally appointed counsel to assist him in
reopening his state post-conviction proceedings. In Irick, the respondent argued that the state
post-conviction proceedings fell outside the scope of § 3599 “because they are ‘the
Petitioner also argues that appointing the federal public defender, who has represented Drummond since 2008 and
is very familiar with the facts and the record, would “serve the related ends of judicial economy and the avoidance
of delay.” (Motion at 8637-38.)
commencement of new judicial proceedings,’ rather than a stage ‘subsequent to federal habeas.’”
Id. at 292. The Sixth Circuit agreed.
Here, petitioner has filed a second post-conviction proceeding in state court to argue that
his death sentence is unconstitutional under Hurst, supra. He asserts in his motion that, should he
not prevail in state court, he intends to file a habeas petition in this Court. He believes that these
are sufficient reasons for this Court to appoint federally-funded counsel to represent him in state
court. This argument would hold weight if there were presently-pending habeas proceedings that
could be stayed while petitioner pursued exhaustion of a new federal claim. See Rhines v. Weber,
544 U.S. 269, 275-76 125 S. Ct., 161 L. Ed. 2d 440 (2005) (holding that a district court has
discretion to stay a mixed petition, that is, one with both exhausted and unexhausted claims, to
allow petitioner to present his unexhausted claims to a state court in the first instance); Conway
v. Houk, No. 3:07-cv-345, 2013 WL 6170601 (S.D. Ohio Nov. 22, 2013) (granting motion to
expand appointment to allow habeas counsel to represent petitioner in state court for purposes of
exhausting a claim). But that is not the case here. There is no pending habeas petition, and there
is no available “subsequent stage” in the now-closed habeas case.
This death penalty habeas case has been closed since June 30, 2016, and any new state
proceedings are not a “subsequent stage” within the meaning of the relevant statute.
Accordingly, the motion for authorization to appear in ancillary state court litigation (Doc. No.
123) is denied.
IT IS SO ORDERED.
Dated: February 22, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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