Fitzpatrick v. Warden, Mansfield Correctional Institution
Filing
136
ORDER DENYING LETTER REQUEST TO WITHDRAW - This capital habeas corpus case is before the Court on receipt of a letter from Attorney James Schuster on behalf of himself and attorney Mark VanderLaan requesting leave to withdraw as counsel for Petitione r (Doc. No. 135). Messrs. Schuster and VanderLaan's request to withdraw is DENIED without prejudice to its renewal upon proof that (1) Ohio law provides for appointed counsel for further proceedings in this case and (2) Messrs. Schuster and VanderLaan have moved in the appropriate Ohio court for appointment of counsel for those purposes. Signed by Magistrate Judge Michael R Merz on 9/22/2014. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
STANLEY FITZPATRICK,
:
Petitioner,
Case No. 1:06-cv-356
:
-vs-
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
MARGARET BRADSHAW, Warden,
:
Respondent.
ORDER DENYING LETTER REQUEST TO WITHDRAW
This capital habeas corpus case is before the Court on receipt of a letter from Attorney
James Schuster on behalf of himself and attorney Mark VanderLaan requesting leave to
withdraw as counsel for Petitioner (Doc. No. 135). The Court has ordered the letter docketed
because this is not a matter on which the Court is authorized to act ex parte.
Mr. Schuster was appointed counsel in this case on August 4, 2005, well before the
Petition was filed, on Motion for Appointment of Counsel filed by Mr. Schuster on Petitioner’s
behalf (Doc. Nos. 3, 4).
On Mr. Schuster’s own Motion, Assistant Ohio Public Defenders Lowe and Prillo were
removed as counsel on April 22, 2010, and Mr. VanderLaan was substituted as requested by Mr.
Schuster. This substitution was made after a Notice of Appeal had been filed (Doc. No. 98) but
before a certificate of appealability was issued.
On July 19, 2013, the Sixth Circuit affirmed denial of the writ. Fitzpatrick v. Robinson,
723 F.3d 624 (6th Cir. 2013), cert denied, 134 S. Ct. 1939, 188 L. Ed. 2d 965 (2014). The Sixth
Circuit issued its Mandate on September 27, 2013, returning jurisdiction to this Court (Doc. No.
130). On September 10, 2014, the Hamilton County Prosecutor filed his Second Motion to Set
Execution Date on the Ohio Supreme Court. State v. Fitzpatrick, Case No. 2002-0506.
Messrs. Schuster and VanderLann were appointed under 21 U.S.C. § 848(q), now
recodified at 18 U.S.C. § 3599. That statute provides in pertinent part
(e) 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.
Counsel indicate their understanding that “either prior State Court counsel to Mr. Fitzpatrick or
the Ohio Public Defender’s Office are the appropriate counsel to Mr. Fitzpatrick for any such
motion or proceedings,” to wit, the Second Motion to Set Execution Date. Their understanding
is belied by the text of the statute which indicates counsel appointed for federal habeas corpus
are to continue in the case, until execution if needed.
In Irick v. Bell, 636 F.3d 289 (6th Cir. 2011), the Sixth Circuit held that § 3599 only
applies where there is no provision for appointed counsel in state law. Nothing in the letter
request indicates whether Ohio law provides for appointment of counsel for proceedings to set an
execution date or, more importantly, for clemency proceedings.
Messrs. Schuster and VanderLaan’s request to withdraw is DENIED without prejudice to
its renewal upon proof that (1) Ohio law provides for appointed counsel for further proceedings
in this case and (2) Messrs. Schuster and VanderLaan have moved in the appropriate Ohio court
for appointment of counsel for those purposes.
Continuity of representation is plainly very important to a capital petitioner, particularly
after denial of certiorari. It is the professional responsibility of present counsel to continue the
representation or to move the appropriate court for appointment. That is only this Court if Ohio
law does not provide for substitute counsel.
September 22, 2014.
s/ Michael R. Merz
United States Magistrate Judge
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