Roberts v. USA

Filing 83

MEMORANDUM OPINION AND ORDER granting 81 Motion to Clarify Scope of Federal Public Defender's Representation. The court terminates the FPD's representation of Petitioner pursuant to paragraph VI(C)(4) of this district's CJA Plan and relieves FPD counsel Kevin Joel of any further obligation to or representation of Petitioner in this case. (Ordered by Judge Sam A Lindsay on 1/15/2019) (aaa)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TRAVIS ROBERTS, # 49518-177,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 3:16-CV-3407-L

MEMORANDUM OPINION AND ORDER
Before the court is Petitioner’s Motion to Clarify Scope of Federal Public Defender’s
Representation (Doc. 81), filed December 10, 2018. The court grants Petitioner Travis Roberts’
(“Petitioner”) request for clarification (Doc. 81) and terminates the federal public defender’s
representation of Petitioner for the reasons set forth in this memorandum opinion and order.
I.

Procedural Background
Petitioner initiated this habeas action by filing a Motion Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence by a Person in Federal Custody (Docs. 2, 3), asserting that his trial
counsel was constitutionally ineffective for: (1) failing to object at sentencing to the drug quantity
amount (Claim 1); (2) failing to object at sentencing to the firearm enhancement (Claim 2); and (3)
failing to file a notice of direct appeal in violation of his Sixth Amendment rights after he requested
that counsel do so (Claim 3). After reviewing Petitioner’s motion and the Government’s response,
United States Magistrate Judge David L. Horan determined that an evidentiary hearing was needed
on Petitioner’s Claim 3 and entered an order on March 21, 2017, setting an evidentiary hearing and
appointing the Federal Public Defender for this district (the “FPD”) for the limited purpose of
Memorandum Opinion and Order - Page 1

representing Petitioner at the evidentiary hearing on Claim 3. Order 1 (Doc. 10). At the FPD’s
request, this appointment was expanded by Judge Horan on July 12, 2017, to include the
representation of Petitioner at an evidentiary hearing regarding Claim 1. Both appointments were
made pursuant to “Title 18, United States Code, Section 3006A and Rule 8(c) of the Rules
Governing Section 2255 Proceedings for the United States District Courts.” Id. at 1-2; Order 1 (Doc.
30). The evidentiary hearing on Claims 1 and 3 was held by the magistrate judge on August 17,
2017, after which supplemental briefing was allowed and filed. On September 5, 2017, Petitioner
withdrew his Claim 3 (Doc. 53) and moved the following day to amend his habeas petition to assert
a new ineffective assistance of counsel claim related to Claim 1 (Docs. 55, 56). Specifically,
Petitioner requested to amend his habeas petition to include a claim that “[t]rial counsel provided
constitutionally ineffective assistance in failing to conduct adequate discovery before deciding to
forego a drug quantity objection.” Opposed Mot. to Amend 1 (Doc. 55). On November 7, 2017,
Petitioner moved for an expedited decision on his habeas petition.
After conducting an evidentiary hearing, Judge Horan entered his findings and conclusions
on December 5, 2018 (Doc. 62), recommending that the court deny Petitioner’s motion to amend his
habeas petition. Judge Horan also granted Petitioner’s request to expedite consideration of his habeas
petition and recommended that all claims by him (whether made pro se or through counsel) be
denied. On October 30, 2018, this court accepted the magistrate judge’s recommendations regarding
Petitioner’s habeas claims and his motion to amend his petition, entered a judgment dismissing the
Section 2255 motion, and denied Petitioner a certificate of appealability (“COA”). See Docs. 73,
74.

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On November 14, 2018, the FPD filed an unopposed motion for leave to appeal in forma
pauperis (“IFP”) (Doc. 75), which the court granted upon recommendation by the magistrate judge.
See Docs. 78, 79. After filing a notice of appeal on behalf of Petitioner on November 28, 2018, the
FPD filed Petitioner’s Motion to Clarify Scope of Federal Public Defender’s Representation (Doc.
81) on December 10, 2018, seeking clarification regarding the scope of the FPD’s appointment to
represent Petitioner “as this matter proceeds.” Mot. 2. The court construes Petitioner’s motion for
clarification as one inquiring whether the limited appointment of the FPD to represent Petitioner at
the evidentiary hearing conducted by the magistrate judge on Claims 1 and 3 extends to all matters
appealed in this case.
II.

Applicable Legal Standard
“[T]here is no constitutional entitlement to appointed counsel in postconviction relief

proceedings.” United States v. Garcia, 689 F.3d 362, 364 (5th Cir. 2012) (citing Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987)). Rule 8(c) of the Rules Governing § 2254 Cases requires a district
court to appoint an attorney to represent a habeas petitioner who qualifies for appointment of counsel
under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, when it determines that an evidentiary
hearing is warranted. Urias v. Thaler, 455 F. App’x 522, 523 (5th Cir. 2011). Under the CJA Plan
adopted by this district, representation may be provided to persons eligible for representation under
18 U.S.C. § 3006A in an “ancillary matter” or in a habeas action under sections 2241, 2254, or 2255
when a district or magistrate judge determines that representation should be provided to an eligible
person in “the interests of justice.” Misc. Order No. 3 ¶ III(A)(2) (N.D. Tex. June 2000). The CJA
also provides that “[a] person for whom counsel is appointed shall be represented at every stage of
the proceedings from his initial appearance before the United States magistrate judge or the court
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through appeal, including ancillary matters appropriate to the proceedings.” 18 U.S.C. § 3006A(c).
This duration provision of the CJA, however, has been determined not to apply during the pendency
of an appeal in postconviction proceedings such as this when the initial appointment of counsel is
made under Rule 8(c) of the Rules Governing Section 2254 Cases. See Boothe v. Quarterman, 326
F. App’x 257, 258 (5th Cir. 2009) (per curiam) (“Boothe was appointed counsel in the district court
pursuant to Rules 6(a) and 8(c) of the Rules Governing Section 2254 Cases. Boothe contends 18
U.S.C. § 3006A(c) requires this appointment to continue during the pendency of his appeal. Boothe
cites no authority holding the duration provision of § 3006A(c) applicable to an appointment under
Rules 6(a) and 8(c). Persuasive authority suggests it is not.”) (citing Miranda v. United States, 455
F.2d 402, 403-05 (2d Cir. 1972)* (citations omitted)); see also Mosqueda-Estevez v. United States,
Nos. 08-0376-CV-W-FJG & 05-0265-01-CR-W-FJG, 2009 WL 1064460, *1-2 (W.D. Mo. Apr. 20,
2009) (granting leave to appeal in forma pauperis but determining that the motion to appoint counsel
on appeal was premature and relieving the FPD from its continued representation of the movant
because the district court had denied a COA, and the court of appeals had not yet determined whether
a COA should issue). Although this district’s CJA Plan similarly provides that, once appointed,
representation of counsel shall continue until the matter is concluded, including on appeal, it also

*

The Second Circuit in Miranda concluded that a habeas appeal did not qualify as an “ancillary matter” for purposes
of the CJA based on the following reasoning:
This [§ 2255] appeal is not such an ancillary matter. Cases interpreting the earlier version of this
section concluded that it applied to trial and direct appeals, not to collateral attacks upon a judgment.
. . . If a § 2255 proceeding were covered under subsection (c), discretion to appoint counsel in
collateral attacks on a judgment as set forth in subsection (g) of 18 U.S.C. § 3006A would be
meaningless. Indeed, if we were to reach the result desired by petitioner here, such discretion might
seldom be exercised.
Miranda, 455 F.2d at 403-05.
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contemplates and allows for the termination of that continuing representation by court order. Misc.
Order No. 3 ¶ VI(C).
III.

Discussion
As required under the CJA, the magistrate appointed counsel to represent Petitioner regarding

his first and third habeas claims after determining that an evidentiary hearing on those claims was
needed. The magistrate judge’s orders appointing the FPD to represent Petitioner, however, limited
the representation to the evidentiary hearing conducted regarding Claims 1 and 3 and did not
thereafter extend the appointment of the FPD’s representation of Petitioner to any appeal in this case
or any other matter after conclusion of the evidentiary hearing. Further, given the limited nature of
the appointment of counsel by the magistrate judge, the court determines that the duration of that
appointment would not automatically continue on appeal to all matters appealed, including those
matters not covered by the original appointments. Additionally, while the court granted Petitioner’s
request to proceed in forma pauperis on appeal, it denied him a COA, and the Fifth Circuit has not
granted Petitioner a COA. For these reasons, and after conferring with the magistrate judge and
considering the legal authority set forth in this order, the court determines that the scope of the
appointment of counsel by the magistrate judge for purposes of the district court proceedings in this
case was not intended to and does not apply to the appeal taken by Petitioner, and the court declines
at this juncture to extend the representation to include all matters appealed absent a request by
Petitioner to do so.
IV.

Conclusion
For the reasons stated, the court grants Petitioner’s Motion to Clarify Scope of Federal

Public Defender’s Representation (Doc. 81) and clarifies that the appointment of the FPD does not
Memorandum Opinion and Order - Page 5

extend to any appeal by Petitioner of this section 2255 habeas action. To avoid potential confusion
moving forward, the court terminates the FPD’s representation of Petitioner pursuant to paragraph
VI(C)(4) of this district’s CJA Plan and relieves FPD counsel Kevin Joel of any further obligation
to or representation of Petitioner in this case. The termination of the FPD’s appointment, however,
does not prevent Petitioner from filing a motion for appointment of counsel for purposes of his
appeal.
It is so ordered this 15th day of January, 2019.

_________________________________
Sam A. Lindsay
United States District Judge

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