Conway, III v. Houk

Filing 201

DECISION AND ORDER GRANTING MOTION TO EXPAND SCOPE OF REPRESENTATION - Petitioner's [Second] Renewed Motion to Expand Appointmentis GRANTED and the scope of federal habeas counsels' appointment is expanded, effective as of September 6, 2011 , to include the completed proceedings in the Franklin County Common Pleas Court and the Franklin County Court of Appeals and any subsequent appeal of the court of appeals' decision to the Ohio Supreme Court. Signed by Magistrate Judge Michael R Merz on 11/22/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES T. CONWAY, III,
:
Petitioner,

Case No. 3:07-cv-345
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsMARC C. HOUK, Warden,
:
Respondent.

DECISION AND ORDER GRANTING MOTION TO EXPAND SCOPE
OF REPRESENTATION
This capital habeas corpus case is before the Court on Petitioner’s [Second] Renewed
Motion to Expand Appointment to allow his habeas counsel to represent him in ongoing state
court proceedings to exhaust previously unexhausted claims (Doc. No. 197). The Warden
opposes the Motion (Doc. No. 198) and Conway has a filed a reply in support (Doc. No. 200).
This is a non-dispositive pre-judgment motion within the decisional authority of a Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(A).

Relevant Procedural History

On September 6, 2011, this Court stayed these proceedings pursuant to Rhines v. Weber,
544 U.S. 269 (2005), to allow Conway to return to state court to exhaust his Third and Fourth
Grounds for Relief (Doc. No. 133). In the same Order, the Court denied Conway’s request for
an evidentiary hearing to present evidence on those claims on the basis of Cullen v. Pinholster,
1

563 U.S. ___, 131 S.Ct. 1388 (2011). The Warden opposed the stay on the basis that these two
Grounds for Relief were meritless, but was unwilling to waive the exhaustion defense. Neither
party appealed and Conway filed his petition for post-conviction relief in the Franklin County
Common Pleas Court on November 1, 2011 (Status Report, Doc. No. 135, PageID 3404).
On November 8, 2011, Conway moved this Court to expand the appointment of his
habeas counsel to include the state court proceedings (Doc. No. 136). The Warden opposed the
Motion on the basis of Irick v. Bell, 636 F.3d 289 (6th Cir. 2011). The Court denied the Motion
on that basis, holding:
In Irick, supra, the Sixth Circuit held § 3599(e) did not authorize
expanding the scope of habeas counsel’s appointment to state court
proceedings subsequent to the federal habeas appointment if state
law provided for appointment of counsel. In Hill v. Mitchell, 2009
U.S. Dist. LEXIS 87542 (S.D. Ohio Sept. 4, 2009), cited
approvingly in Irick, Judge Sargus of this Court held that § 3599(e)
did not authorize appointment in an Atkins post-conviction
proceeding in Ohio under Ohio Revised Code § 2953.21 because
Ohio Revised Code § 2953.21(I) required appointment of counsel
in such a case. The statute in question is not limited to Atkins
claims, but applies to post-conviction petitions filed by anyone
sentenced to death.
(Decision and Order, Doc. No. 139, PageID 3417.) No appeal was taken of that Order, but on
May 21, 2012, Conway filed a renewed motion to expand the scope of representation (Doc. No.
150). He noted that the state trial court had dismissed his post-conviction petition and held at the
same time that he was not entitled to appointment of counsel because he no longer had a pending
post-conviction petition. Id. PageID 4164.

This Court again denied appointment “without

prejudice to renewal if the Franklin County Court of Appeals does not reverse the denial of
appointment of counsel by the Franklin County Common Pleas Court.” (Decision and Order,
Doc. No. 161, PageID 4758.)

2

The Franklin County Court of Appeals affirmed the dismissal of Conway’s successive
post-conviction petition and expressly held he was not entitled to appointment of counsel for that
proceeding, stating:

VII. RIGHT TO COUNSEL
[*P70] In appellant's ninth and final assignment of error, appellant
contends that the trial court erred by denying his motion for
appointment of counsel in aid of his second petition for postconviction relief.
[*P71] R.C. 2953.21(I)(1) addresses the appointment of counsel in
relevant part as follows:
If a person sentenced to death intends to file a petition under this
section, the court shall appoint counsel to represent the person
upon a finding that the person is indigent and that the person either
accepts the appointment of counsel or is unable to make a
competent decision whether to accept or reject the appointment of
counsel
(Emphasis added.)

[*P72] As the State correctly observes, the mandatory appointment
of counsel applies only to a petitioner who files a petition under
Section 2953.21 of the Ohio Revised Code. In other words,
appointment of counsel is required only in the case of a timelyfiled first petition for post-conviction relief. If the General
Assembly had intended second or successive petitioners to have
the same right to counsel, it would have included a reference to
R.C. 2953.21 in division (I), or employed the language "under this
chapter," instead of "under this section."
[*P73] Accordingly, appellant's ninth assignment of error is
overruled.
State v. Conway, 2013-Ohio-3741, 2013 Ohio App. LEXIS 3864 (10th Dist. Aug. 29, 2013).

3

Analysis

The proper scope of habeas counsels’ appointment is set forth in 18 U.S.C. § 3599(e)
which provides:
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.

Conway relies on the interpretation of § 3599(e) in Harbison v. Bell, 556 U.S. 180
(2009). While the holding in Harbison relates only to state clemency proceedings, the majority
in that case also concluded:
Pursuant to § 3599(e)’s provision that counsel may represent her
client in “other appropriate motions and procedures,” 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. That is not the same as classifying state
habeas proceedings as “available post-conviction process” within
the meaning of the statute.

560 U.S. at 190, n. 7. Applying both Pinholster, supra, and Rhines, supra, this Court determined
that it was appropriate for federal counsel to exhaust the Third and Fourth Grounds for Relief in
the Ohio courts. Irick v. Bell, 636 F.3d 289 (6th Cir. 2011), does not preclude expanding the
scope of representation as requested because the Franklin County Court of Appeals has now

4

decided that appointment of counsel is not provided under Ohio law for post-conviction petitions
under Ohio Revised Code § 2953.23. State v. Conway, supra. As noted by Petitioner, his
request for expansion of the scope of representation is parallel to that recently approved by this
Court in Gapen v. Bobby, 2013 U.S. Dist. LEXIS 145415 (S. D. Ohio Oct. 8, 2013).
Accordingly, the Motion is GRANTED and the scope of federal habeas counsels’
appointment is expanded, effective as of September 6, 2011, to include the completed
proceedings in the Franklin County Common Pleas Court and the Franklin County Court of
Appeals and any subsequent appeal of the court of appeals’ decision to the Ohio Supreme Court.
November 22, 2013.
s/ Michael R. Merz
United States Magistrate Judge

5