Batiste v. Stephens

Filing 32

ORDER GRANTING 30 Unopposed MOTION for Extension of Time to File Reply to Motion for Summary Judgment, DENYING 23 MOTION for Appointment of New Counsel, DENYING 27 Opposed MOTION to Substitute Attorney Gregory W. Gardner in place of Kenn eth W. McGuire, DENYING AS MOOT 29 Unopposed MOTION for Extension of Time Reply Motion, DENYING 24 MOTION for acceptance of new counsel; Motion-related deadline set re: 22 Opposed MOTION for Summary Judgment ( Responses due by 7/3/2017.)(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TEDDRICK BATISTE,
Petitioner,
v.
LORIE DAVIS,
Respondent.

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CIVIL ACTION NO. H-15-1258

ORDER
Teddrick Batiste, an inmate on Texas death row, has requested that this Court replace his
current habeas attorney, Kenneth W. McGuire. This is the second time Batiste has sought to dismiss
Mr. McGuire. The Court finds that Batiste has not shown that a substitution of counsel is necessary
at this time.
On May 21, 2015, this Court appointed Mr. McGuire to represent Batiste on federal habeas
review from his Texas capital conviction and death sentence. Dkt. 3. Batiste filed a Motion to Fire
Appointed Attorney on January 19, 2016. Dkt. 4. Batiste, however, subsequently filed a pleading
indicating that Mr. McGuire met with him and he felt reassured about his efforts and investigation.
Dkt. 7. This Court denied the initial motion to replace Mr. McGuire. Dkt 8.
On April 28, 2016, Mr. McGuire filed a lengthy federal petition for a writ of habeas corpus
raising numerous grounds for relief. Dkt. 9. Respondent Lorie Davis has moved for summary
judgment. Dkt. 22. Batiste’s response is due on April 3, 2017.
Batiste filed a second motion to remove Mr. McGuire on January 30, 2017. Batiste
complains that a lack of communication has caused him to lose confidence in Mr. McGuire. Batiste
also complains that Mr. McGuire did not investigate certain issues. Batiste says that Mr. McGuire’s

“refusal to communicate” makes him “unwilling to accept the advice of Mr. McGuire in any further
proceedings.” Dkt. 23 at 4. Batiste requests that the Court instead appoint attorney Gregory W.
Gardner to represent him in this action. Dkt. 24. Mr. Gardner has subsequently filed a motion to
substitute counsel. Dkt. 27. Mr. Gardner anticipates asking for additional time to review this case
and assess whether it would be necessary to amend the habeas petition. Dkt. 27 at 10. In a sealed
pleading, Mr. McGuire disputes Batiste’s allegations but does not oppose substitution. Dkt. 26.
Respondent opposes the substitution of counsel. Dkt. 28.
Federal law entitles indigent capital petitioners to the appointment of counsel, but an inmate
has no right to the service of an appointed attorney of his choice. See United States v. GonzalezLopez, 548 U.S. 140, 151 (2006); see also Wheat v. United States, 486 U.S. 153, 159 (1988) (stating
that it was not “the essential aim of the [Sixth] Amendment . . . to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers”). A court may only substitute counsel for
capital inmates when in the “interests of justice.” Martel v. Clair, 565 U.S. 648, 659-60 (2012).
This “context-specific inquiry” involves “several relevant considerations,” including: “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 own responsibility, if any, for that
conflict).” Id. The Supreme Court has emphasized that a “conflict of interest” is also an important
consideration in this inquiry. Christeson v. Roper, 135 S. Ct. 891, 894 (2015).
Batiste has expressed his concerns about the lawyer/client relationship and this Court has
requested information from Mr. McGuire. The information before the Court does not suggest that
problems in communication have created an irreconcilable conflict of interest between Mr. McGuire
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and Batiste. Instead, the heart of Batiste’s motion revolves around lawyer/client communications.
Mr. McGuire has submitted a sealed pleading disputing the factual premise of Batiste’s motion. Mr.
McGuire does not concur in Batiste’s allegation that a complete breakdown in communication has
occurred. See United States v. Jones, 795 F.3d 791, 797 (8th Cir. 2015) (rejecting, under a different
standard, the substitution of counsel when an attorney contradicts an inmate’s description of
communication). Mr. McGuire has not abandoned his client. See Battaglia v. Stephens, 824 F.3d
470, 474 (5th Cir. 2016). The pleadings do not demonstrate a conflict of interest in which “an
attorney’s personal interests prevent her from advancing her client’s best arguments” Clark v. Davis,
No. 14-70034, 2017 WL 955257, at *6 (5th Cir. Mar. 10, 2017).
Mr. McGuire has been on this case for nearly two years. Batiste did not
file his recent motion for the substitution of counsel until many months after Mr. McGuire ended
his investigation and filed a comprehensive federal petition. Only now, in the final stages of district
court review, has Batiste sought the replacement of counsel. Given the late stage of district court
review, Batiste has not shown that the denial of his substitution request would prevent him from
receiving competent, zealous legal assistance. See Rosales v. Quarterman, 565 F.3d 308, 312 (5th
Cir. 2009) (holding that the district court did not abuse its discretion “where the already-appointed
counsel has never withdrawn from the case and is well familiar with the facts on which the petitioner
claims his clemency petition should be based”). Substituting counsel would only add significant
delay and, given the procedural posture of the case, a new attorney likely could not litigate new
habeas claims. See Mayle v. Felix, 545 U.S. 644, 657 (2005) (allowing new issues in an amended
petition only if they “ar[o]se from the same core facts as the timely filed claims.”). At this stage of
the proceedings, and in light of Mr. McGuire’s competent representation, Batiste has not shown that

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the interests of justice require that a new attorney represent him. See Clair, 565 U.S. at 666 (denying
substitution when obstacles would impede new counsel for carrying out representation as desired by
the petitioner). As Batiste has not shown an irreconcilable conflict, this Court will deny the pending
motions requesting the substitution of counsel. (Dkts. 23, 24, 27).
Under federal law, a capital inmate “shall be entitled to the appointment of one or more
attorneys.” 18 U.S.C. § 3599(a)(2). Mr. McGuire is the only attorney representing Batiste. If Mr.
McGuire perceives that the appointment of second-chair counsel would increase communication and
trust, he may submit the name of an additional attorney to aid in litigating Batiste’s federal habeas
petition.
Defendant’s unopposed motion for extension of time to respond to the pending summary
judgment motion (Dkt. 30) is GRANTED. Defendant’s response is due on or before July 3, 2017.
Defendant’s unopposed motion for extension of time (Dkt. 29) is DENIED AS MOOT.

Signed at Houston, Texas on March 29, 2017.

Gray H. Miller
United States District Judge

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