Opinion
Case No. 3:04-cv-187
02-06-2014
ANTONIO SANCHEZ FRANKLIN, Petitioner, v. NORMAN ROBINSON, Warden, Respondent.
Magistrate Judge Michael R. Merz
NOTICE TO PETITIONER
This capital habeas corpus case is before the Court on Petitioner's renewed pro se Motion to Discharge Counsel (Doc. No. 165). In the Motion, Franklin seeks to discharge his appointed counsel S. Adele Shank and James Fleisher and to have stricken the Motion for Relief from Judgment under Fed. R. Civ. P. 60(b) these attorneys have filed on his behalf.
History of Motions Related to Representation
On the same date that he notified the Court of his intention to file a petition for writ of habeas corpus, Franklin moved, through attorneys with the Ohio Public defender's office, to have counsel appointed to represent him in this Court, pursuant to 21 U.S.C. § 848(q)(4)(b) (Doc. No. 2). Shortly thereafter on March 18, 2004, the Court granted that Motion and appointed Ms. Shank and Mr. Fleisher as counsel in this case. It was necessary to appoint counsel from outside the Ohio Public Defender Office because both Ms. Prude-Smithers and Ms. Roche, who had represented Franklin previously, were alleged to have provided ineffective assistance of counsel. Id. at PageID 13. Ms. Shank even then had extensive prior experience in capital habeas corpus litigation; Mr. Fleisher was an experienced criminal defense attorney who was appointed as co-counsel with the express consent of the Dayton location of court Criminal Justice Act Committee (Order, Doc. No. 6, PageID 24).
Re-codified at 18 U.S.C. § 3599.
Franklin filed his first Motion to Substitute Counsel less than four months after the case was filed (Doc. No. 23). The Court denied that Motion and Franklin's pro se request for additional time, stating in relevant part:
The reason why Petitioner believed that an extension was needed was to permit new counsel to examine the file and prepare a petition. His contention is that any petition which does not include the twenty-four grounds for relief included as Appendix A to the Motion for Substitution of Counsel will be the work of counsel who will, by virtue of having omitted those claims, have provided him with ineffective assistance of counsel.(Decision and Order, Doc. No. 24, PageID 158-60.)
The Court has briefly examined the Petition which was filed by counsel and signed by Petitioner himself; the Petition pleads fifty grounds for relief. It appears that there is substantial overlap between the grounds for relief pled by counsel and those Petitioner believes should be included, although none of Petitioner's proposed grounds are included verbatim.
Petitioner's Motion for Substitution of Counsel is based on a number of false premises.
First of all, Petitioner appears to believe he has a constitutional right to the appointment of counsel for this proceeding. That is not correct. The right to appointed counsel extends to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L.Ed. 2d 539 (1987); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). There is no constitutional right to appointed counsel in habeas cases. McCleskey v. Zant, 499 U.S. 467, 111 S. Ct.1454, 113 L. Ed. 2d 517 (1991). There is also no constitutional right to hybrid representation, with a defendant representing himself and also
having counsel. McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). Of course, if there is no constitutional right to appointed counsel, there is no constitutional right to the effective assistance of counsel in a habeas corpus case. Put another way, Petitioner would not be entitled to habeas corpus relief if he could show at some future time that his counsel in this case had fallen below a minimum level of professional competence and he had been prejudiced thereby. Congress specifically provided in the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"): "The ineffectiveness or incompetence of counsel during Federal or State collateral post- conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 28 U.S.C. § 2254(i). Petitioner's right to counsel in this case is purely statutory. 21 U.S.C. §848(q).
Secondly, Petitioner appears to believe that it would constitute ineffective assistance if his attorneys failed to plead exactly the grounds for relief he wished to have pleaded. That is not so. Attorneys are under an ethical obligation not to plead frivolous claims and to choose among claims which might be available those which have some chance of success. Given the professional stature of both counsel in this case and particularly attorney Shank's extensive experience with capital habeas corpus, the Court believes Petitioner can trust counsel to act in his best interests in this case.
The Motion for Substitution of Counsel is DENIED.
On December 22, 2005, Franklin filed a pro se Motion to Clarify the Record complaining at length about his attorneys' work product (Doc. No. 45). The Court struck the Motion because it had not been endorsed by counsel without prejudice to inclusion of the materials attached if counsel endorsed the request (Doc. No. 46).
During post-judgment practice on June 5, 2009, Franklin filed another pro se Motion for the Substitution of Counsel (Doc. No. 121), listing some thirty-five asserted deficiencies in counsel's performance. The Court denied the Motion, quoting at length from its prior Decision and Order. In denying the Motion, the Court wrote:
The same observations made then [in the 2004 Decision and Order] remain true at this point, more than five years later. Petitioner has a statutory right to the appointment of counsel because he is under a sentence of death. He has been appointed not one, but two attorneys, both of whom are skilled in criminal defense. Ms. Shank had extensive capital habeas corpus experience when appointed and has since served on the American Bar Association's task force to review the Ohio death penalty. Mr. Fleisher is a very experienced criminal defense attorney, current President of the Dayton Chapter of the Federal Bar Association, and has been appointed to at least one additional capital habeas corpus case since his appointment in this case. Both are members of the Criminal Justice Act Plan special panel for death penalty cases. The fact that they have not achieved the result for which Petitioner hoped does not mean that they have failed to provide thoroughly professional and zealous representation in this case.(Decision and Order, Doc. No. 122, PageID 1807-08.)
As Petitioner notes, this Court has held, consistent with the Supreme Court's decision in McKaskle, supra, that there is no right to hybrid representation in which a litigant has a lawyer but also continues to file papers pro se. Petitioner always has the right to discharge his attorneys and proceed without counsel, but he does not have the right to choose to change attorneys or to file pro se so long as he has counsel. Petitioner's Motion for Substitution of Counsel is denied.
On March 14, 2013, after the Sixth Circuit had affirmed the judgment in this case, Franklin filed a pro se "Motion to Rid Counsel" (Doc. No. 143). Franklin noted that he wanted to file his own motion for relief from judgment and that the Court had informed him he could not do so as long as he was represented by counsel. At that pointed Franklin said he wanted to proceed pro se. Id. at PageID 2129. Because the case was then pending on petition for writ of certiorari in the United States Supreme Court and the Sixth Circuit had not issued its mandate, the Court denied the Motion without prejudice for lack of jurisdiction (Doc. No. 148).
On July 22, 2013, after the Supreme Court denied certiorari and the mandate issued, Franklin renewed his Motion to Discharge Counsel (Doc. No. 152). At their request, the Court allowed counsel an opportunity to consult with Franklin and conducted a telephone conference after that had happened. In the subsequent Decision and Order, the Court wrote:
After further discussion with their client, Petitioner's counsel report that he is willing to have them continue as counsel in the case under the condition that they will file a motion for relief from or to modify the judgment and he will be permitted to file pro se his own motion for relief from judgment. That condition is acceptable to the Court. The Motion to Discharge Counsel (Doc; No. 152) is therefore deemed WITHDRAWN. Any and all motions for relief from judgment in this case shall be filed not later than October 31, 2013. The Warden's response is prima facie due twenty-four days thereafter, subject to extension on good cause shown.(Decision and Order, Doc. No. 153, PageID 2181-82.)
Petitioner's counsel may give him legal advice with respect to his reply to the Warden's response. His request, made orally through counsel during the conference, for appointment of separate counsel to assist with the reply is DENIED.
The Present Motion
In his present Motion, Franklin repudiates his attorneys' representation that he agreed to let them continue to represent him and the consequent withdrawal of his prior motions to discharge (Motion, Doc. No. 165, PageID 2547). He expresses his dismay that the Court would not let him file pro se a Motion to Withdraw Reference to the Magistrate Judge because he apparently believed he had been granted permission to file pro se anything he thought appropriate. He now says that he "chooses to operate in a pro se manner; and as such, he seeks to discharge counsel and have striken [sic] their 60(b) motion." Id. at PageID 2548. He concludes:
Franklin never wanted his current counsel to remain on his case in the first place, he was FORCED to undergo these current circumstances by the Court. Furthermore, their advisory capacity has been minimum [sic] and ineffectual - they'll instruct him on common knowledge procedure, but when it comes to trying to ascertain beneficial case law to combat the warden's allegations, they're seemingly clueless and all thumbs. And thereby Franklin desires to relieve himself of counsel's services.Id. at PageID 2548-49.
18 U.S.C. § 3599 provides that indigent persons under sentence of death are entitled to appointed counsel to represent them at every stage of the federal habeas corpus process and thereafter for, e.g. clemency proceedings. When Franklin asked the Court to accord him that right, it did so, appointing current counsel. So far as the Court can ascertain, these counsel have represented Franklin zealously and competently throughout this case. The Court would advise Franklin, as it has before, to trust appointed counsel.
Nevertheless, Franklin has a right to represent himself in this case. That right is codified in 28 U.S.C. § 1654 which provides '[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."
As the Court has repeatedly advised Franklin, there is no right to hybrid representation. McKaskle v. Wiggins, 465 U.S. 168 (1984). Nor is there any right, constitutional or statutory, to discharge appointed counsel at will and then have the Court appoint new counsel.
The Court wishes to make certain that Franklin understands the consequences of his choices. If he persists in his desire to discharge present counsel, the Court will honor that request. However, the discharge will be for all purposes and Franklin's decision to proceed pro se will be permanent: the Court will not thereafter appoint substitute counsel under 18 U.S.C. § 3599.
The Court will therefore hold the Motion to Discharge pending to and including February 25, 2014. Unless the Court has received a written request from Franklin to withdraw the Motion to Discharge by that date, the Motion will be granted with the consequences set forth in this Notice and Order. Prior to that date, the present arrangement will continue: Franklin may file pro se his reply in support of his motions for relief from judgment (Doc. Nos. 158, 159) and any other filings must be by counsel.
The Clerk shall serve a copy of this Notice and Order on Antonio Franklin personally by certified mail.
Michael R. Merz
United States Magistrate Judge