Opinion
Case No. 1:03-cv-801
03-06-2014
JAMES G. HANNA, Petitioner, v. MARGARET BAGLEY, Warden Respondent.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
ORDER DENYING MOTION TO APPOINT NEW COUNSEL
This capital habeas corpus case is before the Court on Petitioner's Motion for Appointment of Clemency Counsel (Doc. No. 153). The Motion notes Hanna's entitlement to federally-appointed counsel for clemency proceedings under 18 U.S.C. § 3599 and Harbison v. Bell, 556 U.S. 180 (2009). The Motion also asserts that Hanna is entitled, under the same statute, to counsel to determine the availability of other judicial proceedings beyond those which have already occurred (Motion, Doc.No. 153, PageID 2884). Because "Hanna has been represented by attorneys from the Ohio Public defender since his first appeal in state court," he asks for new counsel to conduct an "outside" review of his case.
Hanna's theory is that "[a]ny claims regarding the ineffective assistance of trial counsel that had been missed by post-conviction counsel were automatically procedurally defaulted" under Coleman v. Thompson, 501 U.S. 722 (1991). However, in Martinez v. Ryan, 566 U.S. _, 132 S. Ct. 1309 (2012), the Supreme Court created an exception to the Coleman rule:
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a132 S. Ct. at 1318-1319. Hanna suggests that his case must now be reviewed to determine if there was any ineffective assistance of post-conviction counsel which, under Martinez, would have excused any potential claim of ineffective assistance of trial counsel otherwise procedurally defaulted under Coleman.
prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (describing standards for certificates of appealability to issue).
In post-conviction Hanna was represented by Susan M. Roche and Kathryn L. Sandford; Ms. Sandford is "still an attorney with the Office of the Ohio Public Defender. In fact, Sandford is currently a supervising attorney." (Motion, Doc. No. 153, PageID 2886.)
While Sandford would surely not purposely attempt to dissuade any review of her work on Hanna's case, it is simply that her status as a supervisor could subconsciously affect that review if performed by subordinates in the Office of the Ohio Public Defender. Undersigned counsel have worked with Sandford for a long time, and because of their respect for her, they would have a difficult time conducting an impartial review of her work.Id. at PageID 2887.
Analysis
This case was filed September 25, 2003, on Hanna's behalf by Stephen A. Farrell and Kelly L. Culshaw as Assistant State Public Defenders who requested and received appointment under 21 U.S.C. § 848(q), the predecessor to 18 U.S.C. § 3599. (Doc. No. 4.) This constituted providing federally funded counsel as the Court has approved vouchers for payment of counsel from Criminal Justice Act funds throughout the course of these proceedings.
Then as now, the statute contemplated that counsel appointed under the statute would continue to represent the death row inmate through all subsequent judicial proceedings as well as "proceedings for executive or other clemency as may be available to the defendant." Continuity in representation is important for attorney-client trust, but also for reasons of judicial economy: appointing new counsel at various stages would require a new set of attorneys to familiarize themselves with what is always a large file at the expense of both time and money. There is thus no justification to change counsel for the clemency proceedings.
Nor is a change justified for review of post-conviction counsel's work. Martinez was handed down on March 20, 2012. Assuming Martinez would make viable some new claim not previously made because of Coleman, a motion to add such a claim would be barred by the statute of limitations as of March 20, 2013, nearly one year ago. If there were some claim in this case previously made but dismissed on the basis of Coleman, any motion for relief from judgment under Fed. R. Civ. P. 60(b) would be barred as of the same date.
Moreover the Court cannot accept the "subconscious conflict of interest" theory relied on by Hanna. Attorneys may not, in the exercise of their professional responsibility, fail to criticize judges when a ruling is contrary to their client's interests. How much less so can they claim exemption from criticizing a colleague? All litigating attorneys are schooled in Lord Brougham insistence that "an advocate, in the discharge of his duty, knows but one person in the world, and that person is his client." 2 Trial of Queen Caroline 8 (1821). The context must also be remembered:
In 1820, Queen Caroline had been charged with adultery by George IV. Her conviction would have resulted in her divorce from the King and the loss of her title.Monroe Freedman, Henry Lord Brougham and Zeal, 34 Hofstra L. Rev. 1319, 1320 (2006). Calling the king's title to the throne was, of course, an act of treason for which one could be beheaded. The Court is confident that, buoyed by this classic example, counsel will do their duty by Mr. Hanna without regard to Ms. Sandford's opinion.
In his opening statement on behalf of the Queen at her trial, Brougham delivered a fearsome threat—or, as he described it afterwards, a "menace." As Brougham explained in his autobiography, this threat was "neither more nor less than impeaching the king's own title, by proving that he had forfeited the crown." The ground for the King's expulsion from the throne was that "[h]e had married a Roman Catholic . . . while heir-apparent," and such a marriage is "declared by the Act of Settlement to be a forfeiture of the crown, 'as if he were naturally dead.'" Therefore, to drive his threat home, Brougham had prefaced it by threatening that, if exposure of the King's illicit marriage were necessary to protect the Queen, he would not "hesitate one moment in the fearless discharge of [that] paramount duty."
The Motion for Appointment of Clemency Counsel other than present counsel is DENIED.
Michael R. Merz
United States Magistrate Judge