Goff v. Bagley

Filing 101

ORDER denying 99 Motion to Continue. Signed by Judge James L Graham on 05/09/11. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES R. GOFF,
Petitioner,
v.
MARGARET BAGLEY, Warden,

Case No. 1:02-cv-307
JUDGE JAMES L. GRAHAM
Magistrate Judge Terence P. Kemp

Respondent.
ORDER
Final judgment dismissing Petitioner’s capital habeas corpus petition was entered by this
Court on December 1, 2006. (ECF No. 72.) On April 7, 2010, the United States Court of
Appeals for the Sixth Circuit issued a decision finding meritorious Petitioner’s claim of
ineffective assistance of appellate counsel for failing to raise a claim challenging the denial of
Petitioner’s right to allocute before sentencing and directing that a conditional writ of habeas
corpus issue unless the State of Ohio reopened Petitioner’s direct appeal within 120 days. This
matter is before the Court upon Petitioner’s motion to continue the appointment of counsel.
(ECF No. 99.)
Representing Petitioner are counsel David Graeff and W. Joseph Edwards. Counsel for
Petitioner have successfully reopened Petitioner’s direct appeal to the Ohio Court of Appeals for
Clinton County and are awaiting a scheduling order from that court. According to the motion,
Petitioner wants current counsel to continue to represent him in the state appellate court because
that action is directly related to the habeas corpus proceedings that counsel have litigated on
Petitioner’s behalf. Petitioner states that Sixth Circuit CJA budgeting attorney Robert Ranz “has
communicated that this [C]ourt can issue an order to continue the appointment which would

allow Counsel to continue the billing through the CJA fund as the case proceedings through the
state courts. (ECF No. 99, at 3.)
The issue before the Court is whether 18 U.S.C. § 3599(e) authorizes the appointment of
Petitioner’s federal habeas counsel to represent Petitioner on his reopened direct appeal of right.
The Court concludes that it does not. Section 3599(a)(2) provides for the appointment of
counsel for indigent defendants sentenced to death in order to pursue habeas corpus relief
pursuant to 28 U.S.C. § 2254. Section 3599(e) goes on to provide:
Unless replaced by similarly qualified counsel upon the attorney’s own motion or
upon motion of the defendant, each attorney so appointed shall represent the
defendant throughout every subsequent stage of available judicial proceedings,
including pretrial proceedings, trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court of the United States, and
all available post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures, and shall also represent
the defendant in such competency proceedings and proceedings for executive or
other clemency as may be available to the defendant.
18 U.S.C. § 3599(e).
In Harbison v. Bell, the Supreme Court held that Ҥ 3599(e) authorizes federally
appointed counsel represent their clients in state clemency proceedings and entitles them to
compensation for that representation.” Harbison, 129 S.Ct. at 1491. The Supreme Court
explained that “[u]nder a straightforward reading of the statute, subsection (a)(2) triggers the
appointment of counsel for habeas petitioners, and subsection (e) governs the scope of appointed
counsel’s duties.” Harbison, 129 S.Ct. at 1486. Agreeing with the Government that appointed
counsel is not expected to provide each of the services enumerated in subsection (e), the
Supreme Court explained, however, that “that limitation does not follow from the word
‘available’; it follows from the word ‘subsequent’ and the organization of subsection (e) to

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mirror the ordinary course of proceedings for capital defendants.” Harbison, 129 S.Ct. at 1488.
The Supreme Court then made clear that “counsel’s representation includes only those judicial
proceedings transpiring ‘subsequent’ to her appointment.”
Relevant to the instant motion, Harbison included a significant factor limiting the
circumstances under which § 3599(e) authorizes federally appointed counsel to represent a
petitioner in state-court proceedings: the otherwise unavailability of counsel. In laying out the
factual and procedural history, the Supreme Court specifically noted that Tennessee state law did
not authorize the appointment of state public defenders for the purpose of pursuing state
clemency. Harbison, 129 S.Ct. at 1484. Subsequently in its decision, the Supreme Court stated
more forcefully that “subsection (a)(2) provides for counsel only when a state petitioner is
unable to obtain adequate representation.” Id. at 1488.
This Court cannot utilize § 3599(e) to authorize federal habeas counsel to represent
Petitioner on his reopened direct appeal because state law clearly provides for the appointment
of counsel for a direct appeal of right. That being so, neither § 3599(e) nor the United States
Supreme Court’s Harbison decision authorizes this Court to extend federal funds to pay for that
representation. Petitioner states in his motion that he wants current habeas counsel to represent
him in his reopened direct appeal because that appeal is directly related to the habeas corpus
proceedings that they litigated on his behalf. This Court sees no reason why those attorneys,
David Graeff and W. Joseph Edwards, may not seek appointment in the state appellate court to
represent Petitioner on his reopened direct appeal. In short, § 3599(e) does not authorize the
appointment of federal counsel under these circumstances.
For the foregoing reasons, the Court is constrained to DENY Petitioner’s motion to

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continue appointment of counsel (ECF No. 99.)
IT IS SO ORDERED.

Date: May 9, 2011

s/James L. Graham
James L. Graham
United States District Judge

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