Opinion
Case No. 1:01-cv-564
02-01-2013
ELWOOD H. JONES, JR., Petitioner, v. MARGARET BAGLEY, Warden, Respondent.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
ORDER STRIKING NOTICES OF APPEARANCE
This capital habeas corpus case before the Court sua sponte upon the filing of Notices of Appearance by Carol Wright (Doc. No. 191) and Erin Gallagher Barnhart (Doc. No. 192), filed February 1, 2013. The Court first learned of the impending appearances from an email sent by attorney Gary Crim in response to the Court's Order for Status Update of January 31, 2013 (Doc. No. 190) in which Mr. Crim wrote: "For the Court's information, the Federal Defender has replaced Mr. Monta and me as counsel for Mr. Jones. I have forwarded the Court's Order to Ms. Wright."
As all four counsel involved should be aware, the Federal Defender lacks the authority to replace appointed counsel in a case in this Court. 18 U.S.C. § 3599 provides for the appointment of counsel in capital habeas corpus cases and is the authority under which Messrs. Monta and Crim were appointed by this Court to replace, on Jones' Motion, the original counsel appointed to represent him in this case (See Doc. No. 59). Appointment is made by the Court and counsel appointed by the Court is to continue to represent the defendant/petitioner until replaced on motion. 18 U.S.C. § 3599(e). This parallels the process under 18 U.S.C. § 3006A. In all other criminal cases in federal court, the Federal Defender becomes counsel only upon appointment by the Court. In other words, the creation of a Federal Defender Office in a judicial district does not empower that office to assume representation of any litigant in federal court; application and appointment must precede representation.
The original appointment was made under 21 U.S.C. §848(q) which was replaced by 18 U.S.C. § 3599 for the appointment of counsel in death penalty cases as of March 9, 2006.
Just last term, the United States Supreme Court addressed the standard for substituting counsel in a capital habeas corpus case. In Martel v. Clair, _ U.S. _, 132 S. Ct. 1276, 182 L. Ed. 2d 135 (2012), it held that the lower court should employ "the same 'interests of justice' standard that they apply in non-capital cases under a related statute, § 3006A of Title 18" when deciding motions to substitute in these cases. 132 S. Ct. at 1281. In the very same paragraph, Justice Kagan, for a unanimous Court, noted that "[t]he statute contemplates that appointed counsel may be 'replaced . . . upon motion . . . ." Id. There has been no motion to replace Messrs. Monta and Crim, much less the fact-specific inquiry into the reasons for substitution contemplated by the Supreme Court. 132 S. Ct. at 1287.
In addition to being in derogation of the statute, the purported substitution is in derogation of this Court's trial attorney rule, S. D. Ohio Civ. R. 83.4 which permits replacement of the trial attorney only on motion and order (with exceptions either not material or not met here).
Accordingly, the Notices of Appearance of Carol Wright and Erin Gallagher Barnhart are STRICKEN without prejudice to an appropriate motion under 18 U.S.C. § 3599 and S. D. Ohio Civ. R. 83.4. Messrs. Monta and Crim remain as counsel for the Petitioner unless and until the Court orders a substitution.
Michael R. Merz
United States Magistrate Judge