KEATON v. FOLINO et al
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 6/15/17. 6/16/17 ENTERED AND COPIES E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LOUIS FOLINO, et al
Richard A. Lloret
U.S. Magistrate Judge
June 15, 2017
To resolve a potential conflict of interest issue that has arisen between the
petitioner and his long-time attorneys, I must assess the facts that generated the
potential conflict. Many of those facts are subject to claims of privilege. Before I can
assess the relevant facts, I must resolve the claims of privilege. As a first step in doing
so, I will order the petitioner’s counsel to create and file under seal a privilege log. This
memorandum explains my reasoning.
The Facts and Procedural History
By two orders, dated April 12, 2017 and April 27, 2017, I asked the parties to
address a number of questions I had about the petitioner’s fifth claim. The fifth claim
alleges that the petitioner’s trial counsel was ineffective for failing to locate and hire a
pathologist to rebut the medical examiner’s determination of time and manner of death.
The petitioner asserts that the claim is viable, despite the fact that he did not properly
raise the claim in state court, because it involves proof of his “actual innocence.” Doc.
29, p. 65. Such a claim may avoid the ordinary rule of procedural default, and be
considered on its merits, if it is of sufficient gravity and credibility. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991), House v. Bell, 547 U.S. 518, 571 (2006) (Roberts,
J., dissenting), McQuiggan v. Perkins, ___ U.S. ____, 133 S. Ct. 1924, 1932 (2013).
The petitioner submitted an expert report by Dr. Jonathan L. Arden as part of his
habeas petition, but admits he did not submit this report during the state’s PCRA
proceedings. The expert report challenges the medical examiner’s determination of the
time of death and the determination that the death was a homicide. Many of the
questions in my orders were devoted to determining when the petitioner and his counsel
became aware of the information contained in the expert report, and why the petitioner
and his counsel were prevented from submitting such a report during the PCRA hearing.
“To invoke the miscarriage of justice exception to AEDPA's statute of limitations”
the “petitioner ‘must show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.’” McQuiggin v. Perkins, 133 S. Ct.
1924, 1935 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Unexplained delay
in asserting new evidence of actual innocence is a factor I may consider when assessing
the nature and credibility of the evidence of actual innocence proffered by a petitioner.
Id. at 1935.
In a motion to appoint independent counsel to advise Mr. Keaton (Doc. No. 80),
counsel for the petitioner have advised me that answering the questions I posed in my
two orders would require them to violate client confidences and the attorney-client
privilege. The petitioner’s counsel also stated that they have a potential conflict of
interest with their client. Counsel for Mr. Keaton represented him in the PCRA
proceedings in state court. Counsel asserted that the petitioner may have a viable claim
that counsel were ineffective in the PCRA hearing, and that given the divergence in
interest it would not be appropriate for counsel to advise the petitioner whether or not
to pursue such a claim. Doc. No. 80, at 2-3. Counsel has moved for appointment of
independent, supplemental counsel to advise Mr. Keaton about what to do. Id.
Counsel do not spell out the nature or detail of the underlying ineffectiveness
claim that causes the alleged conflict. Counsel wrote that, “[t]he Court’s questions
appear to address the default question in a manner that implicates undersigned
counsel’s state post-conviction performance. The Court’s questions thus implicate
Martinez v. Ryan, 566 U.S. 1 (2012), which Petitioner has not previously relied upon to
excuse any purported default.” Doc. No. 80, at 2.
While it is doubtful that questions, as such, can implicate anything, 1 the facts
surrounding Dr. Adler’s report may implicate such a Martinez claim, or not. Those facts
have not been disclosed. They lie veiled behind privilege and confidentiality claims.
Whether these facts implicate or negate a Martinez claim remains to be seen.
The AEDPA bars a straightforward claim for ineffective assistance of counsel at a
post-conviction hearing. See 28 U.S.C. § 2254(i). Nevertheless, Martinez permits a
petitioner to assert that such ineffectiveness was “cause” for the procedural default of a
claim that trial counsel was ineffective, and by this device excuse the procedural default
that would ordinarily bar a federal court from considering a claim of ineffectiveness of
trial counsel that was defaulted in state proceedings. Martinez, 566 U.S. at 9, 13-14. The
habeas petition in this case did not raise a Martinez claim.
Both sides agree that if the petitioner wishes to pursue such a Martinez claim, his
current counsel would have to withdraw. At a hearing on April 28, 2017 counsel
conveyed to me that at a substantial part of the information needed to evaluate the
Questions, as such, may presuppose facts, but implicature is ordinarily within the province of assertions,
possible Martinez claim is subject to the attorney-client privilege, the attorney workproduct doctrine, or a duty to maintain confidentiality under Pa. R.P.C. 1.6.
By memorandum dated May 24, 2017 (Doc. No. 88), counsel for Mr. Keaton
advised that Mr. Keaton, having considered the issues raised at the April 28, 2017
hearing, wished to waive any potential Martinez claim and proceed with his
longstanding relationship with current counsel. Doc. No. 88, at 2-3. Counsel proposes
that I either colloquy Mr. Keaton about the waiver, or appoint additional counsel for the
sole purpose of advising him about the waiver. The Commonwealth advised me that they
have elected not to submit a post-argument memorandum, but will rely on their
positions as previously argued. Doc. No. 91.
There is no Sixth Amendment right to appointment of counsel in habeas
proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“our cases establish
that the right to appointed counsel extends to the first appeal of right, and no further”);
Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997) (holding that there is no
constitutional right of counsel conferred upon indigent civil litigants). Mr. Keaton is no
longer facing a death sentence in this case, and so he is not entitled to an attorney under
28 U.S.C. § 3006A. See Harbison v. Bell, 556 U.S. 180, 184–85 (2009). Rule 8(c) of the
Rules Governing Section 2254 Proceedings provides that a magistrate judge must
appoint counsel if an evidentiary hearing is necessary. See U.S. v. Iasiello, 166 F.3d 212,
213 (3d Cir. 1999) (interpreting the same rule in a 2255 proceeding). Rule 8(c) does not
make provision for the appointment of additional conflict counsel, but neither does it
exclude such a possibility.
In order to evaluate whether to accept a waiver of a potential conflict of interest, I
must determine through a colloquy that the waiver is knowing, intelligent, and
voluntary. U.S. v. Fumo, 504 F.Supp.2d 6, 30 (E.D.Pa. 2007). To do so, I must ensure
that Mr. Keaton “understands the details of his attorney's possible conflict of interest
and the potential perils of such a conflict, that he has discussed the matter with his
attorney or if he wishes with outside counsel[.]” U.S. v. Dolan, 570 F.2d 1177, 1181 (3d
Cir. 1978). An appropriate colloquy requires a detailed description of the nature of the
conflict and of the potential pitfalls of proceeding with a conflicted attorney. See U.S. v.
Scarfo, 980 F.Supp. 803, 808–11 (E.D.Pa. 1997). I must question Mr. Keaton “most
explicitly” about the “nature of the conflict and [his] awareness of the conflict.”
Government of Virgin Islands v. Zepp, 748 F.2d 125, 139 (3d Cir. 1984). Ordinarily I
must “conduct an evidentiary hearing or factual inquiry to determine whether
disqualification is appropriate.” Id. In this case I lack the detail that would make a
colloquy effective. See, e.g., Scarfo, 980 F.Supp. at 808-11.
Before conducting a colloquy with Mr. Keaton or deciding whether to appoint
conflict counsel, I will require counsel for Mr. Keaton to create and submit a privilege
log. Such a log is a useful first step in deciding what information is privileged and what
is not. See In re Avandia Marketing, Sales Practices and Products Liability, 2009 WL
4807253, at *1 (E.D.Pa. 2009); Fourth Age Limited v. Warner Bros. Digital
Distribution, Inc., 2014 WL 12584447, at *4 (C.D.Cal. 2014). As with any preliminary
evidentiary issue, I must determine whether a privilege applies to specific evidence, and
whether an exception excuses its application. See Fed. R. Evid. 104(a); U.S. v. Zolin, 491
U.S. 554, 565 (1989). Once I have determined which relevant facts are privileged and
which are not, I can proceed to assess the nature and extent of the attorney-client
conflict in the light of available facts.
Absent these steps, a colloquy will be an exercise in “imparting vaguely
contoured, abstract advice” that is unlikely to be effective in ensuring that a waiver is
knowing, intelligent, and voluntary. Dolan, 570 F.2d at 1182 and n.8. Nor will
preparation of a privilege log be unduly burdensome in this case. The universe of
documents that pertain to this issue is likely to be small, and counsel is both skillful and
familiar with the history of the case, having represented Mr. Keaton, with substantial
success, for 17 years. Mr. Keaton’s right to conflict-free counsel, his waiver of that right,
and my colloquy all deserve to be grounded in the relevant facts.
For these reasons, I will issue an order requiring the petitioner’s counsel to
submit a privilege log under seal. I will deny the petitioner’s motion (Doc. No. 80),
without prejudice to the petitioner’s right to seek additional relief after the privilege log
has been submitted.
BY THE COURT:
_s/Richard A. Lloret
RICHARD A. LLORET
U.S. Magistrate Judge
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