Goff v. Bagley
Filing
103
OPINION AND ORDER denying 102 Motion to Continue Appointment of Counsel. Signed by Judge James L Graham on 11/7/11. (ds) Modified on 11/8/2011 to clarify text (kk2)
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.
OPINION AND ORDER
Final judgment dismissing Petitioner’s capital habeas corpus petition was entered by this
Court on December 1, 2006. (ECF No. 72.) This matter is before the Court upon Petitioner’s
second motion to continue appointment of counsel under U.S.C. § 3599. (ECF No. 102.) For
the following reasons, the Court finds Petitioner’s motion not well taken.
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. Petitioner thereafter filed a motion asking this Court
to continue appointment of Petitioner’s habeas corpus counsel for the purpose of litigating the
motion to reopen Petitioner’s direct appeal in state court. (ECF No. 99.) On May 9, 2011, this
Court issued an order denying Petitioner’s request, explaining that “neither § 3599(e) nor the
United States Supreme Court’s Harbison decision authorizes this Court to extend federal funds
to pay for that representation” where the state petitioner is otherwise able to obtain adequate
representation. (ECF No. 101, at 3.) In Harbison v. Bell, 556 U.S. 180, 129 S.Ct. 1481, 1491
(2009), 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.”
Counsel for Petitioner–David Graeff and W. Joseph Edwards–are now before the Court
with a second motion to continue appointment of counsel. (ECF No. 102.) The motion
advances two reasons why this Court erred in concluding that Harbison did not authorize it to
extend § 3599 funds for the purpose of federal habeas counsel representing Petitioner in the
reopening of his state direct appeal. First, according to Petitioner, Harbison’s limitation
exempting § 3599 funds from proceedings in which the state provides for appointment of
counsel applies only to new trials or retrials. (ECF No. 102, at 6.) Petitioner’s second argument
is that his reopening proceeding is analogous to moving for a new trial–a proceeding that §
3599(e) clearly states is within the scope of appointed habeas counsel’s representation.
Petitioner’s interpretation of Harbison is incorrect and neither argument is availing.
A reading of the entire portion of Harbison that Petitioner cites in support of his
arguments actually defeats those arguments. In refuting the Government’s argument that
Harbison would require a lawyer who succeeded in obtaining federal habeas relief to represent
the client in the ensuing state retrial, the Supreme Court explained:
We do not read subsection (e) to apply to state-court proceedings that follow the
issuance of a federal writ of habeas corpus. When a retrial occurs after postconviction relief, it is not properly understood as a “subsequent stage” of judicial
proceedings but rather as the commencement of new judicial proceedings.
Moreover, subsection (a)(2) provides for counsel only when a state petitioner is
unable to obtain adequate representation. States are constitutionally required to
provide trial counsel for indigent defendants. Thus, when a state prisoner is
granted a new trial following § 2254 proceedings, his state-furnished
representation renders him ineligible for § 3599 counsel until the commencement
of new § 2254 proceedings.
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Harbison, 129 S.Ct. at 1488. The Supreme Court’s reference in Harbison to a new trial or
retrial was in response one of the Government’s arguments. No reasonable reading of Harbison
leads to the conclusion that Harbison’s prohibition against extending § 3599 funds to subsequent
state proceedings for which state law provides for adequate representation applies only to new
trials. Petitioner’s attempt to analogize the re-opening of his direct appeal to a motion for a new
trial, rather than a retrial, is equally unavailing because Harbison clearly closes the door on
extending § 3599 funds for state-court proceedings in which Petitioner can obtain state-funded
representation.
In Irick v. Bell, 636 F.3d 289 (6th Cir. 2011), the Sixth Circuit addressed an appeal from
the district court’s decision granting continued appointment of counsel to pursue state clemency
but denying continued appointment of counsel to pursue a writ of error coram nobis (based upon
evidence discovered during federal habeas proceedings), the reopening of state postconviction
proceedings, and competency-to-be-executed proceedings. The Sixth Circuit affirmed the
district court’s decision, explaining that “[a]bsent clear direction from the United States Supreme
Court or Congress, we decline to obligate the federal government to pay for counsel in state
proceedings where the state itself has assumed that obligation.” 636 F.3d at 291. Harbison and
Irick squarely foreclose Petitioner’s request to continue appointment of habeas counsel to pursue
the reopening of Petitioner’s state direct appeal.
In its May 9, 2011 order denying his first motion to continue appointment, this Court
noted that state law clearly provides for the appointment of counsel for a direct appeal of right.
Petitioner takes issue with the Court’s conclusion, asserting that “the fact that state law provides
for the appointment of counsel for a direct appeal as of right is immaterial because the reopening
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of Goff’s appeal is not a new appeal as of right.” (ECF No. 102, at 7.) Counsel for Petitioner
represent that they have successfully “reopened the Appellate proceedings in the Clinton County,
Ohio Court of Appeals” and that “the case is currently pending before the state Appellate Court.”
(ECF No. 102, at 3.) There is authority for the position that once an indigent criminal defendant
successfully reopens a direct appeal of right, he or she is entitled to the appointment of counsel
to litigate that reopened appeal. See, e.g., State v. Embry, No. L-03-1114, 2005 WL 280213, at
*1 (Ohio App. 6 Dist. Feb. 1, 2005). Nowhere in Petitioner’s motion do counsel suggest that the
state appellate court has refused to appoint them or compensate them. In the absence of that
circumstance, this Court remains constrained from extending § 3599 funds for the purpose of
habeas counsel pursuing the reopening of Petitioner’s direct appeal.
For the foregoing reasons, the Court DENIES Petitioner’s second motion to continue
appointment of counsel (ECF No. 102.)
IT IS SO ORDERED.
Date: November 7, 2011
s/James L. Graham
James L. Graham
United States District Judge
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