Stephenson v. Carpenter (DPLC)

Filing 114

MEMORANDUM AND ORDER: It is ORDERED that Petitioner's motion to remove counsel [Doc. 88 ] hereby is GRANTED and Federal Defender Services of Eastern Tennessee hereby is REMOVED as appointed counsel in this case. It further i s ORDERED that the Office of the Federal Public Defender for the Middle District of Tennessee hereby is APPOINTED as substitute counsel. It further is ORDERED that Petitioner's pro se motion to render a decision on his motion to remove counse l [Doc. 90 ] will be DENIED as moot in light of this Memorandum & Order. It further is ORDERED that newly-appointed counsel shall file a response to Respondent's pending motion to modify orders granting Petitioner computer access and use [D oc. 107 ] within forty-five (45) days from entry of this order. Signed by District Judge Pamela L Reeves on 5/29/18. (copy mailed to Petitioner at Riverbend and copy mailed to the Office of the Federal Public Defender for the Middle District of Tennessee) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JONATHAN STEPHENSON,

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Petitioner,
v.
TONY MAYS, Warden,1
Respondent.

No.:

3:14-CV-00414
REEVES/GUYTON

MEMORANDUM & ORDER
This is a capital habeas corpus case brought pursuant to 28 U.S.C. § 2254 by Jonathan
Stephenson (“Petitioner”). Petitioner was convicted of first degree murder and conspiracy to
commit first degree murder by a Cocke County jury in 1989. He was sentenced to death for the
murder charge, and received a consecutive sixty-year sentence for the conspiracy charge.2
Petitioner currently is represented by Federal Defender Services of Eastern Tennessee, Inc.
(“FDSET”) [Doc. 3].
Presently before the court is Petitioner’s motion to remove counsel for a conflict of interest
[Doc. 88].3 Respondent has filed a response in opposition [Doc. 94], to which Petitioner has filed
a reply [Doc. 95]. A hearing on Petitioner’s motion was held on February 2, 2018, in Nashville,
1

Tony Mays is now the Warden at Riverbend Maximum Security Institution. The Clerk
is DIRECTED to substitute Tony Mays as Respondent in this matter. See Rule 2(a) of the Rules
Governing Section 2254 Cases in the United States District Courts.
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Petitioner originally was sentenced to death plus twenty-five years for his convictions,
but that sentence was overturned on appeal, and Petitioner was resentenced to life without parole
with a consecutive sixty years for the conspiracy conviction. Petitioner appealed his life without
parole sentence, and the case again was remanded for resentencing. He then was re-sentenced to
death on the murder conviction.
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Petitioner’s pro se motion to render a decision on his motion to remove counsel [Doc.
90] will be denied as moot in light of this Memorandum & Order.
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Tennessee. For the following reasons, Petitioner’s motion to remove counsel [Doc. 88] will be
GRANTED, and, pursuant to 18 U.S.C. §§ 3599(a)(2) and (e), the Office of the Federal Public
Defender for the Middle District of Tennessee will be APPOINTED as substitute counsel for
Petitioner throughout every stage of available judicial proceedings in this case.
I.

BACKGROUND
Petitioner’s motion seeks the removal of FDSET as his court-appointed counsel due to an

alleged conflict of interest arising from the employment in FDSET’s Greeneville office of Attorney
Tim Moore, who represented him previously at a resentencing hearing that is the subject of several
of his pending habeas claims [Doc. 88 p. 1]. Petitioner alleges that Moore’s association with
FDSET creates a conflict of interest since it would be “impossible” for his current counsel to
pursue claims of ineffective assistance against Moore [Id.] Accordingly, Petitioner asks the Court
to remove FDSET as his counsel and either appoint new counsel or permit him to represent himself
[Id. p. 2].
Respondent opposes Petitioner’s request to remove FDSET as counsel for numerous
reasons: (1) substitution of counsel at this stage has the potential to cause unnecessary delay in
matters currently pending before the Court; (2) Petitioner has not alleged when he first became
alerted to Moore’s employment with FDSET; (3) Petitioner has not complained about a lack of
communication between himself and his current attorney; and (4) Petitioner cannot show any
active conflicts of interest arising from Moore’s employment in the Greenville office of FDSET,
or that his employment has adversely affected the performance of his current counsel [Doc. 94].
In this regard, Respondent’s counsel notes that he himself has never engaged with Moore in any
capacity, either prior to or since Moore’s employment with FDSET [Id. p. 3]. Alternatively, in the

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event that the Court should decide to remove FDSET, Respondent requests that substitute counsel
be appointed, rather than permitting Petitioner to represent himself [Id. pp. 4-5].
In reply, Petitioner asserts that Moore was hired by the Circuit Court of Cocke County to
be one of his attorneys during a sentencing hearing which “was in contention” because Cocke
County allegedly did not have jurisdiction [Doc. 95 p. 1]. Petitioner further alleges that Moore
filed a motion with the appellate court in which “he was supposed to” object to the jurisdiction of
Cocke County but did not [Id. pp 1-2]. Had Moore not “failed in his duties,” Petitioner contends,
the jurisdictional argument “would have been successfully presented to the trial court” and the
“case should have and would have been dismissed” [Id. pp. 4-5]. Petitioner submits that this
situation creates a conflict of interest because FDSET will not argue a claim of ineffectiveness
against an attorney employed by them [Id. p. 5].
After hearing from Petitioner and counsel for both parties at the proceeding on February 2,
2018, the Court instructed Petitioner to further discuss the situation with his attorney to see if the
situation could be resolved. The Court subsequently received notice from FDSET that, after
consultation, Petitioner indicated that he did not wish to withdraw his motion to remove counsel
and requested a ruling on that motion [Doc. 109].
II.

STANDARD OF REVIEW
Title 18 U.S.C. § 3599(a)(2) “entitles indigent defendants to the appointment of counsel in

capital cases, including habeas corpus proceedings.” Martel v. Clair, 565 U.S. 648, 652 (2012).
While the statute “leaves it to the court to select a properly qualified attorney,” Christeson v. Roper,
135 S. Ct. 891, 894 (2015), it further contemplates that the court may replace appointed counsel
with “similarly qualified counsel . . . upon motion of the defendant.” 18 U.S.C. § 3599(e). Once
a defendant raises his dissatisfaction with his court-appointed counsel, “the district court is

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obligated to inquire into the defendant’s complaint and determine whether there is good cause for
the substitution.” Benitez v. United States, 521 F.3d 625, 632 (6th Cir. 2008).
A motion for substitution of appointed counsel brought by an indigent petitioner seeking
federal habeas relief in capital cases should be decided under the same “interests of justice”
standard applicable in federal non-capital cases. Clair, 565 at 657-62. Among the factors to be
considered in determining whether substitution of counsel is warranted “include: the timeliness of
the motion; the adequacy of the district court's inquiry into the defendant's complaint; and the
asserted cause for that complaint, including the extent of the conflict or breakdown in
communication between lawyer and client (and the client's responsibility, if any, for that conflict).”
Christeson, 135 S. Ct. at 894 (quoting Clair, 565 at 663); see also United States v. Iles, 906 F.2d
1122, 1130 n. 8 (6th Cir. 1990).
III.

ANALYSIS
Plaintiff’s complaint regarding a potential conflict of interest has obligated the Court to

explore his allegations to determine whether the interests of justice require the replacement of
FDSET as court-appointed counsel in this case. See Clair, 565 U.S. at 658–63 (adopting an
“interests of justice” standard on a motion for substitution of counsel under § 3599(e)). Upon
consideration of the relevant Christeson factors, the Court concludes that a substitution of counsel
is warranted here.
As to the timeliness of Petitioner’s motion, the Supreme Court has emphasized that
“[p]rotecting against abusive delay is an interest of justice.” Clair, 565 at 662. Although
Petitioner’s pending motion was not filed until well into these proceedings, and while a number of
other complex issues remain outstanding, it does not appear that Petitioner has filed the motion for
the purposes of delay. Rather, Petitioner indicated at the hearing that he filed the motion shortly

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after he became aware, through his own research, of a potential new ground of ineffective
assistance of counsel stemming from Moore’s performance.
As to the second factor, the Court has made the appropriate inquiry into Petitioner’s
complaint by holding a hearing and providing Petitioner, as well as his counsel and Respondent’s
counsel, the opportunity to address Petitioner’s complaint. The Court also granted Petitioner and
his counsel a chance to resolve their dispute, but to no avail.
Finally, the Court has considered the extent of the conflict between Petitioner and counsel
and finds that the potential conflict is too great, and the stakes are too high, to permit FDSET to
continue to represent Petitioner in this matter. Petitioner’s desire to raise an ineffective assistance
of counsel claim against an attorney who works for FDSET, albeit in a different office, creates a
conflict of interest that cannot be ignored or sanctioned. Accordingly, the Court finds that the
interests of justice require the removal of FDSET from representing Petitioner in this case.
Having determined that FDSET should be removed, the remaining issue is whether to
appoint substitute counsel or to permit Petitioner to represent himself. While recognizing that
Petitioner does have a constitutional right to self-representation if he knowingly and intelligently
waives his right counsel, the Court finds that the appropriate course of action in this case is to
appoint “similarly qualified” counsel rather than to allow Petitioner to proceed pro se.
The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. The right to assistance of counsel is made obligatory on the states by the Fourteenth
Amendment and an indigent defendant has the right to have counsel appointed for him. Gideon v.
Wainwright, 372 U.S. 335, 342–45 (1963).

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The Sixth and Fourteenth Amendments also guarantee the corollary right to waive counsel
and to proceed pro se. Faretta v. California, 422 U.S. 806, 807 (1975). However, when an accused
chooses self-representation, he necessarily relinquishes “many of the traditional benefits
associated with the right to counsel.” Id. at 835. Accordingly, “in order to represent himself, the
accused must ‘knowingly and intelligently’ forgo those relinquished benefits” and “should be
made aware of the dangers and disadvantages of self-representation, so that the record will
establish that ‘he knows what he is doing and his choice is made with eyes open.’” Id. (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)); see also Johnson v. Zerbst,
304 U.S. 458, 464 (1938) (waiver of right to counsel is valid only when it “reflects an intentional
relinquishment or abandonment of a known right or privilege”).
18 U.S.C. § 3599 grants federal capital defendants and capital habeas petitioners enhanced
rights of representation, in light of what § 3599(d) calls “the seriousness of the possible penalty
and . . . the unique and complex nature of the litigation.” Clair, 565 U.S. at 659. “By providing
indigent capital defendants with a mandatory right to qualified legal counsel in these proceedings,
Congress has recognized that federal habeas corpus has a particularly important role to play in
promoting fundamental fairness in the imposition of the death penalty.” McFarland v. Scott, 512
U.S. 849, 859 (1994). Given the important role qualified counsel are designed to play in promoting
fundamental fairness in death penalty cases, the Court finds that appointing substitute counsel is
the more appropriate choice at this time.
18 U.S.C. § 3599(e) requires that appointed counsel be replaced only by “similarly
qualified counsel.” In accordance with that statute, the Court will appoint the Office of the Federal
Public Defender for the Middle District of Tennessee as substitute counsel for Petitioner for the
duration of these proceedings.

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IV.

CONCLUSION
Accordingly, for the reasons set forth herein, it is ORDERED that Petitioner’s motion to

remove counsel [Doc. 88] hereby is GRANTED and Federal Defender Services of Eastern
Tennessee hereby is REMOVED as appointed counsel in this case. Pursuant to 18 U.S.C. §§
3599(a)(2) and (e), it further is ORDERED that the Office of the Federal Public Defender for the
Middle District of Tennessee hereby is APPOINTED as substitute counsel, effective immediately,
and shall represent Petitioner throughout every remaining stage of available judicial proceedings
in this case. The Clerk is DIRECTED to mail a copy of this order to both Petitioner and the Office
of the Federal Public Defender for the Middle District of Tennessee.
It further is ORDERED that Petitioner’s pro se motion to render a decision on his motion
to remove counsel [Doc. 90] will be DENIED as moot in light of this Memorandum & Order.
It further is ORDERED that newly-appointed counsel shall file a response to Respondent’s
pending motion to modify orders granting Petitioner computer access and use [Doc. 107] within
forty-five (45) days from entry of this order.
IT IS SO ORDERED.

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UNITED STATES DISTRICT JUDGE
A S S
C U
UNITED STATES DISTRICT JUDGE

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