Hicks v. Wetzel et al

Filing 3

ORDER granting motion for leave to proceed IFP & for appt of cnsl 1 , FPD for MDPA Capital Habeas Unit appt'd to rep ptnr Hicks, & directing that cnsl for ptnr shall file status rpt apprising ct of procedural posture of ptnr's state ct proceedings & any other pertinent matters by 5/29/18 & every 45 days thereafter or until further order of ct. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 11/30/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHARLES RAY HICKS,
Petitioner
v.
JOHN E. WETZEL, Secretary,
Pennsylvania Department of
Corrections; ROBERT GILMORE,
Superintendent of the State
Correctional Institution at Greene;
and MARK GARMAN,
Superintendent of the State
Correctional Institution at
Rockview,
Respondents.

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No. 1:17-CV-1969
(Chief Judge Conner)

THIS IS A CAPITAL CASE

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Presently before the court is a motion for leave to proceed in forma pauperis
and for appointment of federal habeas corpus counsel, filed by counsel on behalf of
petitioner Charles Ray Hicks. (Doc. 1.) For the reasons that follow, the motion
(Doc. 1) will be granted.
Petitioner is a state prisoner who has been sentenced to death following his
2014 convictions for first degree murder and related charges in the Court of
Common Pleas of Monroe County, Pennsylvania. On March 28, 2017, the Supreme
Court of Pennsylvania affirmed petitioner‟s convictions and death sentence.
Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017). Petitioner‟s timely petition for
writ of certiorari was denied on October 2, 2017. Hicks v. Pennsylvania, No. 169657, Order (U.S. Oct. 2, 2017).

Petitioner now wishes to file a counseled petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his state
convictions and sentence. Consequently, petitioner is seeking appointment of
counsel pursuant to McFarland v. Scott, 512 U.S. 849 (1994) and 18 U.S.C. §
3599(a)(2). Section 3599 provides, in relevant part,
In any post conviction proceeding under section 2254 or 2255 of title
28, United States Code, seeking to vacate or set aside a death sentence,
any defendant who is or becomes financially unable to obtain adequate
representation or investigative, expert, or other reasonably necessary
services shall be entitled to the appointment of one or more attorneys
and the furnishing of such other services in accordance with
subsections (b) through (f) [(relating to conditions of appointment)].
18 U.S.C. § 3599(a)(2).
In McFarland, the United States Supreme Court construed this statutory
right to counsel to include the right to legal counsel prior to the filing of a formal
federal habeas corpus petition and held that “a „post conviction proceeding‟ within
the meaning of [§ 3599(a)(2)] is commenced by the filing of a capital defendant‟s
motion requesting the appointment of counsel for his federal habeas corpus
proceeding.” McFarland, 512 U.S. at 856-57. Accordingly, once a capital defendant
files a motion requesting appointment of counsel, as petitioner has done in this
case, he is granted “a mandatory right to qualified legal counsel.” Id. at 854. This
right to counsel “necessarily includes a right for that counsel meaningfully to
research and present a defendant‟s habeas claims.” Id. at 858. The Supreme Court
cautioned that “[w]here this opportunity is not afforded, „[a]pproving the execution
of a defendant before his [petition] is decided on the merits would clearly be
improper.‟” Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 889 (1983)). Here, because
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the court concludes that petitioner is indigent, (see Doc. 2-3), and the Office of the
Federal Public Defender for the Middle District of Pennsylvania Capital Habeas
Unit (“Middle District CHU”) has demonstrated that it possesses the special
expertise in capital jurisprudence and thereby qualifies for appointment as capital
habeas counsel under the standards set forth in 18 U.S.C. § 3599(a)(2), the court will
grant petitioner‟s motion for appointment of the Middle District CHU as counsel.
Finally, petitioner informs the court that his federal habeas petition is due to
be filed on October 2, 2018, or one (1) year after the completion of his direct appeal.
See 28 U.S.C. § 2244(d)(1)(A). Petitioner suggests that, rather than issuing a
scheduling order at this time, the court require counsel for petitioner to file a status
report in 180 days apprising the court of the procedural posture of any of
petitioner‟s state court proceedings or other pertinent matters. The court agrees
with this suggestion.
ACCORDINGLY, this 30th day of November, 2017, for the reasons set forth
herein, it is hereby ORDERED that:
1.

The motion for leave to proceed in forma pauperis (Doc. 1) is
GRANTED. See 28 U.S.C. § 1915(a)(1).

2.

The motion to appoint counsel (Doc. 1) is GRANTED. The Federal
Public Defender for the Middle District of Pennsylvania Capital
Habeas Unit is APPOINTED to represent petitioner Charles Ray Hicks
in the captioned action. See 18 U.S.C. § 3599(a)(2); see also id. §
3599(a)(2)(c).

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3.

Counsel for petitioner shall file a status report apprising the court of
the procedural posture of petitioner‟s state court proceedings and any
other pertinent matters on or before May 29, 2018, and every forty-five
(45) days thereafter, or until further order of court.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

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