Owens v. Stirling et al

Filing 237

ORDER granting 232 motion for appointment of counsel, 233 , 234 , and 235 motion to appear pro hac vice. Further, within thirty (30) days of the date of this order, appointed counsel shall submit to the court a proposed initial clemency budget. (proposed initial clemency budget due by 5/8/2021). Signed by Honorable Terry L Wooten on 4/8/2021. (mmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Freddie Owens,

Case No. 0:16-cv-02512-TLW

PETITIONER
v.
Bryan P. Stirling, Commissioner, South
Carolina Department of Corrections;
Willie D. Davis, Warden, Kirkland
Correctional Institution,

Order

RESPONDENTS

This is a capital habeas corpus action brought pursuant to 28 U.S.C. § 2254 by
Petitioner Freddie Owens against Respondents Bryan P. Stirling and Willie D. Davis
(collectively, the State). This matter is now before the Court on Owens’ motion
requesting the appointment of Emily Paavola as local counsel, and motions
supporting the pro hac vice applications of Robert Lee, Elizabeth Peiffer, and Gerald
King Jr., all of whom seek to represent Owens “in the remaining stages of his postconviction proceedings.”1 ECF No. 232 at 1. The filed motion specifically raises
representation in “state clemency proceedings” and notes the language in 18 U.S.C.
§ 3599(e) referencing representation in “all available” proceedings. See id. at 3–4.
The Court will briefly summarize this case’s procedural history. Owens was
sentenced to death by a South Carolina jury for the 1997 murder of a convenience
store clerk committed during a robbery of the store. His direct appeal and post-

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Each of the motions state that the State has no objection to their appointment.
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conviction proceedings in state court were unsuccessful.2 He then filed this federal
habeas action, but this Court granted the State’s motion for summary judgment and
dismissed his petition. The Fourth Circuit affirmed. He then filed a petition for a writ
of certiorari from the Supreme Court, which remains pending. See generally Owens

v. Stirling, 967 F.3d 396, 403 (4th Cir. 2020) (summarizing the procedural history),
petition for cert. filed, No. 20-975 (U.S. Jan. 15, 2021).
Owens was represented by CJA attorneys John Delgado and Hank Ehlies
during the bulk of his habeas proceedings before this Court. But on appeal, the Fourth
Circuit relieved them from further representation and appointed Mr. Lee and Michael
Williams. Before the Supreme Court, Owens continues to be represented by Mr.
Williams and Mr. Lee, and they have now been joined by Ms. Peiffer.
In 1988, Congress passed legislation, now codified at § 3599, that expanded the
role of federally-appointed counsel for death-sentenced inmates in certain limited
state proceedings. The Supreme Court addressed this expansion in Harbison v. Bell,
556 U.S. 180 (2009), which is discussed in the next paragraph. Regarding the specific
language in § 3599(e), an indigent prisoner sentenced to death—whether by a state
or federal court—is entitled to federally-appointed habeas counsel, who will represent
him “throughout every subsequent stage of available judicial proceedings, including
. . . all available post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures, and shall also represent the

His first two appeals to the South Carolina Supreme Court resulted in new
sentencing hearings, but the third time a death sentence was imposed, it was
affirmed.
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defendant in such competency proceedings and proceedings for executive or other
clemency as may be available to the defendant.” Recent caselaw has outlined the
scope of representation authorized by this statute.
As noted, the Supreme Court in Harbison addressed the parameters of legal
representation under § 3599(e). That case involved a death-sentenced state inmate
who, after failing to obtain federal habeas relief, sought appointment of counsel under
§ 3599(e) to pursue state clemency, as the state did not provide clemency counsel. See

Harbison, 556 U.S. at 182. The Government argued that the statute only authorized
representation in federal proceedings, but the Court determined that “[t]he
Government’s argument is not convincing.” The Court concluded that “subsection (e)
authorizes counsel to represent her client in ‘subsequent’ stages of available judicial
proceedings.” Id. at 189. This would not include, for example, post-appointment state
habeas proceedings because “[s]tate habeas is not a stage ‘subsequent’ to federal
habeas.”3 Id. However, the Court held that § 3599(e) authorization would include the
state clemency proceedings. Id. at 183.
While the Fourth Circuit has not yet addressed this issue, the Sixth Circuit
has provided helpful guidance on the topic. In discussing the Harbison petitioner, the
Sixth Circuit stated that he was entitled to federally-funded counsel “because his
state clemency proceedings were ‘subsequent’ to his federal habeas proceedings, not
just chronologically but in terms of the way the sequence of legal proceedings should

The Court noted that there is an exception to this when counsel must exhaust a
claim in state court as part of the federal habeas proceeding. Id. at 190 n.7.
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work.” Hand v. Houk, 826 F. App’x 503, 506 (6th Cir. 2020) (emphasis in original).
The Sixth Circuit noted that it had previously denied appointment of counsel in
another case because “federally funded counsel are not available under § 3599(e) to a
prisoner seeking to reopen a state post-conviction judgment on a state law ground
that is not an attempt to exhaust a claim in order to present it in federal court.” Id.
at 507 (citing Irick v. Bell, 636 F.3d 289, 292 (6th Cir. 2011)). In Hand, the Sixth
Circuit followed that logic to deny the appointment of counsel for that petitioner
because he sought “to reopen his state post-conviction petition to introduce new
evidence to show that the state court erred by dismissing his claim of ineffective
assistance of counsel as barred by res judicata.” Id. at 507–08. Thus, as the Sixth
Circuit explained in discussing Harbison, § 3599(e) authorizes the appointment of
federally-funded counsel only for those proceedings that are both chronologically and
procedurally “subsequent” to a state prisoner’s federal habeas proceeding.
Having addressed the scope of the appointments authorized by § 3599(e), as
explained by the Supreme Court and the Sixth Circuit, the Court now turns to the
specific motions currently before the Court. Ms. Paavola is a South Carolina attorney
who works for Justice 360 and was previously its Executive Director when the
organization was known as Death Penalty Resource & Defense Center. Mr. Lee and
Ms. Peiffer work for Virginia Capital Representation Resource Center in
Charlottesville—Mr. Lee as Executive Director and Ms. Peiffer as Senior Staff
Attorney. Mr. King is Chief of the recently-created Capital Habeas Unit for the
Fourth Circuit, which represents death-sentenced inmates in federal habeas and

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state clemency proceedings throughout the Fourth Circuit and is based out of the
office of the Federal Public Defender for the Western District of North Carolina. Each
of these attorneys have extensive experience in capital litigation, both in state and
federal court, and meet § 3599’s criteria for appointment.
Having concluded that counsel satisfy the standards for appointment in
§ 3599, Owens’ motion for appointment of Ms. Paavola as local counsel, ECF No. 232,
and the motions in support of the pro hac vice applications of Mr. Lee, Ms. Peiffer,
and Mr. King, ECF No. 233, 234, 235, are GRANTED without requiring payment of
the application fee. Within 30 days of the date of this order, appointed counsel shall
consult with the Fourth Circuit’s Case Budgeting Attorney and submit to the Court
a proposed initial clemency budget pursuant to § 680.30(a) of Guide to Judiciary
Policy, Volume 7A.4
IT IS SO ORDERED.

s/ Terry L. Wooten
Terry L. Wooten
Senior United States District Judge
April 8, 2021
Columbia, South Carolina

The Court notes that Ms. Paavola represents that she will serve as pro bono local
counsel and that Mr. King’s service will not require payment of attorney’s fees to him
due to his position as a federal public defender. ECF No. 232 at 5–6.
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