Selsor v. Mullin, et al
Filing
91
OPINION AND ORDER by Judge Claire V Eagan that the report and recommendation (Dkt. # 89) is accepted, and counsel and investigator fees and expenses in the amounts recommended in the report and recommendation shall be approved. See Dkt. & #035; 89, at 21-22. The Court will sign the vouchers as reduced, and forward the vouchers for payment. ; accepting 89 Report and Recommendation (Re: 90 Objection to Report and Recommendation, 79 Sealed Document, 89 REPORT AND RECOMMENDATION by Magistrate Judge T Lane Wilson ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
MICHAEL SELSOR,
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Petitioner,
v.
ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary,
Respondent.
Case No. 01-CV-0721-CVE- TLW
OPINION AND ORDER
On November 22, 2013, Magistrate Judge T. Lane Wilson entered a report and
recommendation (Dkt. # 89) concerning the payment of fees and expenses to petitioner’s counsel
and investigator for services provided during the clemency proceedings. Counsel Gary Peterson and
Robert Nance, as well as the investigator Kristi Christopher, object to the report and
recommendation.
I.
In 1975, Michael Selsor was charged with first degree murder and other crimes following
the robbery of a convenience store. Selsor v. State, 2 P.3d 344 (Okla. Crim. App. 2000). Selsor and
Richard Dodson robbed a convenience store, and each man was armed with a handgun during the
robbery. Id. at 347. During the robbery, Selsor shot and killed the clerk, and Selsor later admitted
“that before entering the store, he and Dodson had agreed to leave no witnesses.” Id. at 348. Selsor
received a death sentence on the first degree murder charge, but the sentence was modified to life
imprisonment when the Oklahoma Court of Criminal Appeals determined that Oklahoma’s death
penalty statute was unconstitutional. Selsor v. State, 562 P.2d 926 (Okla. Crim. App. 1977). Selsor
later filed a petition for writ of habeas corpus, and he argued that he was convicted in violation of
the Sixth Amendment to the United States Constitution. In 1996, the Tenth Circuit Court of Appeals
granted Selsor’s petition for writ of habeas corpus and remanded the case for a new trial, because
the state court refused to appoint separate attorneys for Selsor and Dodson during a joint trial.
Selsor v. Kaiser, 81 F.3d 1492 (10th Cir. 1996). The State elected to retry Selsor and again sought
the death penalty. At the re-trial, Selsor was convicted and he was sentenced to death. Selsor v.
State, 2 P.3d 344 (Okla. Crim. App. 2000). Selsor exhausted his appellate and post-conviction
remedies in state court, but his death sentence was affirmed.
Selsor filed a petition for writ of habeas corpus (Dkt. # 17) in this Court. Selsor’s petition
was denied, and he appealed the ruling to the Tenth Circuit. While Selsor’s case was on appeal to
the Tenth Circuit, he was represented by Peterson and the Federal Public Defender’s Office for the
District of Colorado. However, the Federal Public Defender’s Office could provide assistance only
while the case on appeal, and it could not participate in state clemency proceedings. Dkt. # 73, at
1-2. The Tenth Circuit affirmed the denial of Selsor’s petition. Dkt. # 69. Selsor filed a petition
for writ of certiorari in the United States Supreme Court, but his petition was denied. Dkt. # 83.
The Tenth Circuit had preliminarily approved some clemency related expenditures, and it continued
“to receive clemency vouchers within the scope of the preliminarily approved budget until July 29,
2011.” Dkt. # 70. However, the Tenth Circuit directed this Court to “make its own determination
as to the reasonableness of any clemency related expenses,” and this Court was expressly authorized
“to consider whether a new budget conference limited to clemency related issues is warranted . . .
.” Id. at 2-3. While the Tenth Circuit retained authority over the clemency budget, it approved a
total of $9,247.91 for clemency related expenses for petitioner’s counsel and the investigator.
2
Peterson asked the Court to appoint co-counsel, Nance, to represent petitioner during
clemency proceedings, and the Court granted Peterson’s request. Dkt. # 76. The Court directed
counsel to submit a proposed clemency budget. Counsel submitted a proposed budget requesting
preliminary approval of a budget of $51,022.42 for legal and investigative services. Dkt. # 79. The
Court referred the matter to the magistrate judge for a budget conference, and the magistrate judge
advised counsel that the proposed budget significantly exceeded what was reasonably necessary for
a clemency hearing. Dkt. # 81. Counsel filed a second proposed budget seeking approval of a
budget of $36,047.42, but counsel was again advised the proposed budget was excessive. The Court
preliminarily approved a clemency budget of $12,000. Dkt. # 84.
Petitioner requested a clemency hearing before the Oklahoma Pardon and Parole Board (the
Board), and a hearing was set for April 16, 2012. See Dkt. # 90-1, at 1. Petitioner’s request for
clemency was denied, and he was executed on May 1, 2012. Petitioner’s counsel and investigator
submitted vouchers for clemency related services, and they request payment of $37,855.70. The
magistrate judge reviewed the vouchers, and he entered a report and recommendation (Dkt. #89)
stating that many of the expenses incurred by counsel and the investigator were not reasonably
necessary. He recommended that the Court approve a total of $16,979.641 for services provided to
petitioner during the clemency proceedings. Counsel and the investigator object to the report and
recommendation, and they ask the Court to approve the full amount requested in the vouchers. Dkt.
# 90.
1
This amount is in addition to the $9,247.91 payment approved by the Tenth Circuit for
clemency related expenses.
3
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim
to a magistrate judge for a report and recommendation. However, the parties may object to the
magistrate judge’s recommendation within 14 days of service of the recommendation. Schrader v.
Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d 573, 579
(10th Cir. 1999). The Court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1). The Court may accept, reject, or modify the report and recommendation of the magistrate
judge in whole or in part. Fed. R. Civ. P. 72(b).
III.
Peterson, Nance, and Christopher object to numerous aspects of the report and
recommendation, and the Court will consider the objections under a de novo standard of review.
However, there are no objections to the magistrate judge’s summary of petitioner’s case or the
historical overview of clemency, and the Court accepts those portions of the report and
recommendation without further review. The Court also accepts any other portion of the report and
recommendation to which there is no objection.
The Court initially notes that objections to specific reductions recommended by the
magistrate judge will be considered in light of counsel’s and the investigator’s awareness of the
preliminary budget of $12,000 approved by the Court. See Dkt. # 84. Although counsel and the
investigator may not have agreed that the budget was adequate, they were on notice that the Court
had not approved fees or expenses in excess of $12,000, and they exceeded this budget knowing that
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services beyond this amount may not be compensated.2 Counsel’s or the investigator’s disagreement
with the amount of the preliminary budget will not be considered as a basis to reject the magistrate
judge’s report and recommendation, but the Court will consider the specific objections to reductions
recommended by the magistrate judge under a de novo standard of review.
Compensation Approved by Tenth Circuit
Peterson and Nance object to the magistrate judge’s characterization of CJA funds approved
by the Tenth Circuit, because they claim that most of these funds were paid to the investigator rather
than to petitioner’s counsel. Dkt. # 90, at 1-2. They claim that the magistrate judge recommended
reductions in attorney fees based on a mistaken belief that counsel received attorney fees approved
by the Tenth Circuit, even though most of the funds approved by the Tenth Circuit were for
investigative services. Id. at 2.
Counsel mischaracterizes the magistrate judge’s report and recommendation.
It is
undisputed that Tenth Circuit approved $9,247.91 for clemency related expenses incurred before
July 29, 2011. Dkt. # 70, at 2; Dkt. # 79, at 5. Counsel represented that $8,953.14 of these funds
were for investigative services and that counsel received only $294.77 for attorney fees out of the
total amount approved by the Tenth Circuit for clemency related services. Id. at 5. This is
consistent with Peterson’s representation that he had not devoted much time to the issue of clemency
while the case was on appeal because he had been focused on appellate litigation, and clemency
became relevant only after the Tenth Circuit denied petitioner’s request for habeas relief. Dkt. # 73,
2
The objection states that counsel and the investigator “neither proposed nor agreed to this
figure” and the “$12,000 figure was not an accurate estimate of the true costs of clemency
representation.” Dkt. # 90, at 8-9. However, the Criminal Justice Act (CJA) guidelines do
not require counsel’s agreement with the budget approved by the Court, and this is not a
legitimate basis to object to the report and recommendation.
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at 3. When the magistrate judge referred to funds approved by the Tenth Circuit, he referred to the
$9,247.91 as funds “associated with state clemency proceedings” or as “funds already received from
the Tenth Circuit.” Dkt. # 89, at 2; id. at 22. Although there is one reference in the report and
recommendation that “petitioner’s counsel was paid $9,247.91 for fees and expenses,” this remark
was made in the context of his analysis that a clemency budget does not ordinarily exceed $10,000
total, and the magistrate judge was making the point that petitioner had already received nearly
$10,000 before counsel even submitted a clemency budget to this Court. Id. at 14. Nothing in the
report and recommendation suggests that the magistrate judge attributed all or a substantial amount
of the $9,247.91 approved by the Tenth Circuit as attorney fees or expenses. There is no basis for
the Court to conclude that the magistrate judge mistakenly believed that counsel received a
substantial amount of the $9,247.91 approved by the Tenth Circuit for services related to clemency
or that he recommended reductions in payment to counsel based on this alleged belief. Instead, it
is clear that the magistrate judge referred to the funds approved by the Tenth Circuit as part of the
overall clemency budget, and counsel’s objection is overruled.
Investigator Work to Edit Video
Peterson, Nance, and Christopher object to the magistrate judge’s recommendation that
Christopher not be compensated for 11 hours she spent editing video footage for submission of a
video to the Board. They argue that this work was necessary to allow the petitioner to present a
coherent and non-repetitive video of interviews with persons offering testimonials in support of
petitioner, and they argue that the magistrate judge misunderstood the limitations on video and
documentary evidence imposed by the Board. Dkt. # 90, at 3.
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The Court agrees with the magistrate judge that it was not reasonably necessary for the
investigator to spend 11 hours editing video footage. Under 18 U.S.C. § 3599(f), the Court is
required to pay only for expert and investigative expenses that are “reasonably necessary.” Under
this standard, a defendant is required to show “a ‘substantial need’ for the requested assistance.”
Gary v. Warden, Georgia Diagnostic Prison, 686 F.3d 1261, 1268 (11th Cir. 2012). While it may
have been reasonably necessary for the investigator to conduct interviews, counsel knew that they
had a limited budget and they have not shown that it was reasonably necessary for the investigator
to incur nearly $1,000 in expenses to edit the video footage. Counsel argues that it was necessary
to edit the video presentation because of limits placed on documentary and video evidence by the
Board but, as the magistrate judge noted, counsel could have presented the same evidence just as
effectively by written or oral submission at the clemency hearing. Dkt. # 89, at 19. The investigator
will not be compensated for the time spent editing video footage.
Letters from Petitioner’s Ex-Wife and Son
The magistrate judge recommended that the Court reduce payment to Christopher from 11
hours to 2.8 hours for her travel to Tulsa to request letters from petitioner’s ex-wife and son. Dkt.
89, at 19. Counsel argues that the Christopher should be fully compensated for her efforts to obtain
letters from petitioner’s ex-wife and son, because these letters were critical to petitioner’s efforts to
obtain clemency. Dkt. # 90, at 5-6. As part of petitioner’s clemency packet, he included a letter
from his ex-wife, but there was no letter from his son. Counsel and Christopher assert that
Christopher contacted petitioner’s ex-wife by telephone or mail and requested letters on behalf of
petitioner, but neither petitioner’s ex-wife or son would send letters to Christopher. They claim that
it would have cast petitioner in a negative light if his ex-wife and son were unwilling to submit
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letters on his behalf, and it was necessary for Christopher to travel to Tulsa to request these letters
in person.
The magistrate judge recommended an 80% reduction in the amount sought by Christopher
for her work to obtain these letters, because the time records do not show if Christopher attempted
to contact petitioner’s ex-wife and son by telephone or mail and the letters were likely to be of
minimal value. Christopher argues that she did attempt to contact the petitioner’s ex-wife and son
by phone, and payment for this work was approved by the Tenth Circuit. Dkt. # 90, at 6.
Christopher also argues that the time records do not support the magistrate judge’s statement that
she spent 11 hours attempting to obtain these letters. The Court will assume that Christopher did
attempt to contact petitioner’s ex-wife and son by telephone before traveling to Tulsa and that she
billed less than 11 hours for her efforts. Even so, the Court agrees with the magistrate judge that
Christopher has not shown that the work was reasonably necessary. It is apparent that petitioner’s
ex-wife and son were reluctant to provide letters and, in fact, petitioner’s son never provided a letter
to Christopher. While they may have felt that it was important for Christopher to travel to Tulsa,
they have not shown that they realistically expected petitioner’s son to draft a letter or that the letter
from petitioner’s ex-wife was of substantial value in their efforts to obtain clemency for petitioner.
The Court finds that the reduction recommended by the magistrate judge is appropriate, and
Christopher will be compensated for 2.8 hours of work for this work.
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Administrative Work in Preparing Budget and Supervising Investigator
The magistrate judge recommended that counsel not be reimbursed for 16.7 hours3 spent on
administrative tasks related to preparation of the budget and the filing a motion for the appointment
of co-counsel. He also recommended that Peterson not be reimbursed for 11.7 hours of time for
supervising the investigator. Dkt. # 89, at 18-20. Counsel objects to these proposed reductions and
they argue that they should be compensated for this work just as if they were billing a private client.
Dkt. # 90, at 9.
Much of counsel’s objection to reductions for these administrative tasks is based on an
assumption that the magistrate judge recommended objections based on unstated “budgetary
restrictions” imposed on the federal judiciary, and they claim that they should be paid just as if they
were representing a private client. Id. at 9. They argue that “[i]f the judiciary lacks the money to
pay for ‘administrative tasks’ that it wants performed, then it should not be ordering private counsel
to perform them.” Id. at 10. Counsel is reminded that “CJA service is first a professional
responsibility, and no lawyer is entitled to full compensation for services the public good.” In re
Carlyle, 644 F.3d 694, 699 (8th Cir. 2011). In the context of an attorney’s objections to reductions
in his clemency budget, the Eighth Circuit stated that:
It is . . . clear that Congress did not intend to provide full compensation and that it
contemplated appointments of private counsel to supplement the efforts of
professional defender organization. Thus, although the increased maximum rates
envisioned greater participation by the private bar, the [CJA] also presupposes
recognition by private attorneys of their professional obligation to render services for
those unable to pay. The [CJA] is in no way an attorney’s full-employment act.
3
The total time of 16.7 hours includes 14.5 hours preparing proposed budgets, 1.9 hours
researching and drafting a motion for appointment of co-counsel, and 0.3 hours spent in
telephonic hearings with the magistrate judge on budget issues.
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Congress merely intended that those attorneys who devote themselves to the timehonored tradition of service should not go entirely without compensation.
Id. In addition to the general principle that appointments under the CJA should be considered as
public service, the magistrate judge also noted that “[i]mplicit in the CJA is that counsel will use
good judgment in determining the scope and extent of legal services provided and that they will be
paid only for those services that are reasonably necessary.” Dkt. # 89, at 14. This is especially true
when counsel knew that the Court had preliminarily approved a budget of $12,000.
In this case, counsel could have limited the amount of time spent on administrative tasks or
could have determined what work was reasonably necessary in light of the approved budget.
Instead, “petitioner’s counsel appears to have left no stone unturned” and they prepared for the
clemency proceedings as if they had no budgetary restrictions. Id. While the Court commends
counsel for their thoroughness, the Court agrees with the magistrate judge that counsel should not
be compensated for administrative tasks such as preparing a budget and supervising the
investigator.4
Preparation for Clemency Proceeding
The magistrate judge recommended a 70% reduction in the amount sought by counsel for
drafting the clemency brief and for preparation for the clemency hearing. Peterson spent 43.4 hours
4
Peterson could also be objecting to the magistrate judge’s recommendation that a portion of
his compensation be transferred to the investigator, because Peterson directed the
investigator to perform work without considering whether the work was reasonably
necessary. Dkt. # 89, at 20; Dkt. # 90, at 11. However, the Court agrees with the magistrate
judge that some of Peterson’s compensation should be transferred to the investigator.
Counsel, not the investigator, took the lead on determining what work was reasonably
necessary, and it is clear that counsel gave little thought to possible budgetary restrictions.
It would not be reasonable to punish the investigator for work performed at the direction of
counsel, and $1,485 of Peterson’s compensation will be transferred to Christopher.
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researching and drafting the clemency brief and 6.5 hours preparing for the hearing. Nance spent
7.1 hours researching and drafting the clemency brief, 12.1 hours reviewing notes, 12.8 hours
reviewing court records, and 15.2 hours preparing for the hearing. In addition, Peterson recorded
5.6 hours for corresponding with Nance and Federal Public Defender’s Office, and Nance spent 7.4
hours in telephone conferences and corresponding by e-mail. Counsel argues that the magistrate
judge mistakenly believed that counsel “ wasted 70% of the time we spent on this life-or-death
matter,” and they claim that all of their preparation for the clemency hearing was necessary. Dkt.
# 90, at 12-13.
Counsel mischaracterizes the magistrate judge’s report and recommendation, and he did not
suggest that counsel’s efforts were “wasted” or that they should have “tossed off a slapdash brief,
coasted without effort through the hearing, and packed our client off to an inevitable execution.”
Id. at 13. The magistrate judge noted that the arguments raised in the clemency brief were
straightforward concepts of justice and fairness, and he did not find any complex legal arguments
or strategies that justified the amount of time spent in preparation for the clemency hearing. On the
brief alone, counsel spent a total of 50.5 hours, and they have requested $89895 in compensation for
this time. That amount is almost three-quarters of the entire clemency budget preliminarily
approved by the Court. Counsel also spent 46.6 hours preparing for the clemency hearing, and they
seek $8294.80 in compensation for this time. The magistrate judge did not make any finding that
the work was “wasted,” and his report and recommendation did not criticize counsel for the quality
of their work. Dkt. # 89, at 20-21. Instead, he found that the time spent by counsel in drafting the
clemency brief and preparing for the hearing was excessive in light of the budget approved by the
5
This amount was calculated using the hourly rate of $178 billed by counsel.
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court and the general purpose of clemency proceedings. Id. at 14-15, 20-21. The Court agrees with
the magistrate judge that counsel’s request for over $17,000 in preparation for approximately a two
hour hearing is excessive, and the magistrate judge’s recommendation to reduce counsel’s fees for
this work by 70% is accepted.
IV.
The Court has reviewed the magistrate judge’s report and recommendation and the
objections of petitioner’s counsel and investigator, and finds that the report and recommendation
should be accepted as entered. Counsel and the investigator received preliminary approval of a
$12,000 clemency budget, and they have asked the Court to pay more than three times that amount
for clemency related services. While the Court appreciates the time and effort spent on petitioner’s
clemency proceedings, counsel and the investigator knew that they were exceeding their budget and
that they might not be compensated for services provided in excess of the budget. The magistrate
judge recommended that the Court pay $16,227.55, or over $4,000 more than the preliminary
budget, and this adequately compensates counsel and the investigator for their services.
IT IS THEREFORE ORDERED that the report and recommendation (Dkt. # 89) is
accepted, and counsel and investigator fees and expenses in the amounts recommended in the report
and recommendation shall be approved. See Dkt. # 89, at 21-22. The Court will sign the vouchers
as reduced, and forward the vouchers for payment.
DATED this 29th day of January, 2014.
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