Opinion
00 C 5476
June 12, 2002
MEMORANDUM AND ORDER
Petitioner Robert Cloutier brings this motion for appointment of counsel for his state clemency proceedings and attorney compensation for representation during his state clemency proceedings pursuant to 21 U.S.C. § 848(q). For the following reasons, Cloutier's motion is granted.
I. BACKGROUND AND PROCEDURAL POSTURE
Following a jury trial in the circuit court of Cook County, Illinois, Cloutier was found guilty of aggravated criminal sexual assault and murder. At a separate sentencing hearing, the same jury found Cloutier eligible for the death penalty on the ground that the murder had been committed in the course of the felony of aggravated criminal sexual assault. Finding no mitigating circumstances sufficient to preclude the imposition of the death penalty, the court sentenced Cloutier to death. On appeal, the Illinois Supreme Court upheld Cloutier's death sentence. The United States Supreme Court denied Cloutier's petition for writ of certiorari. Cloutier has exhausted all of his state post-conviction remedies and his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is pending with this court.
Because Cloutier is financially unable to pay for legal representation, this court appointed attorneys Gary Ravitz and Eric Palles at a fee rate of $125 an hour and Marshall Hartman on a pro bono basis to represent Cloutier under 21 U.S.C. § 848(q). Before this court is Cloutier's motion for appointment of counsel to represent him in his state clemency proceedings and for his attorneys Ravitz and Palles to be compensated at the rate of $125 an hour pursuant to 21 U.S.C. § 848(q). Cloutier seeks payment for his attorneys from the federal government because the State of Illinois does not provide compensation for services rendered in connection with clemency applications.
II. ANALYSIS
Section 848(q) of Title 21 pertains to the appointment and compensation of counsel for indigent defendants in capital cases. Section 848(q)(10) allows the court to depart from the normal rates set by the Criminal Justice Act and to compensate counsel at a rate not to exceed $125 per hour for in-court and out-of-court time. See 21 U.S.C. § 848(q)(10)(A); United States v. Cooper, 746 F. Supp. 1352, 1352-53 (N.D. Ill. 1990). Section § 848(q)(8) provides that:
[E]ach attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.21 U.S.C. § 848(q)(8) (emphasis added).
As the unequivocal language of § 848(q)(8) indicates, once an attorney is appointed to represent an indigent defendant in a capital case, that attorney must represent the defendant through all available proceedings, including state clemency actions. See Hill v. Lockhart, 992 F.2d 801, 803 (8th Cir. 1993) ("The plain language of § 848(q) evidences a congressional intent to insure that indigent state petitioners receive `reasonably necessary' competency and clemency services from appointed, compensated counsel.")
Although the Seventh Circuit and courts in this district have yet to consider whether § 848(q)(8) covers state clemency proceedings after a § 2254 petitioner has exhausted all of his state remedies, other federal courts have concluded that it does. See, e.g., Lowery v. Anderson, 138 F. Supp.2d 1123, 1125 (S.D. md. 2001) (section 2254 habeas petitioner who had been sentenced to death was entitled to have counsel appointed and compensated at federal expense for services relating to state clemency proceedings, where petitioner's federal habeas action was not frivolous and state law did not provide avenue to obtain attorney compensation in clemency proceeding); Strickler v. Greene, 57 F. Supp.2d 313, 315 (E.D.Va. 1999) (statute applies to both state and federal clemency proceedings because § 2254 petitioners can only seek clemency through the state); Gordon v. Vasquez, 859 F. Supp. 413, 418 (E.D. Cal. 1994) ("statute's plain meaning concerning the payment of fees without reference to the forum is made clear by the congressional directive that federally appointed counsel represent the defendant in competency and clemency matters.").
All of these courts, along with the Eighth Circuit in Hill, based their conclusions on the principle that when construing a statute, courts look to the statute's plain language giving the words used their ordinary meaning. See Lara-Ruiz v. INS, 241 F.3d 934, 940 (7th Cir. 2001). This court finds these cases persuasive and agrees that § 848(q)(8) covers state clemency proceedings. Because Cloutier's habeas action in front of this court is not frivolous and Illinois law does not provide for attorney compensation in its clemency proceedings, this court concludes that Cloutier's counsel in his federal habeas proceedings must represent him in his state clemency proceedings. Further, the court sets appointed counsel Ravitz and Palles' fee rate at $125 an hour for in-court and out-of-court time that is reasonably necessary to represent Cloutier in his state clemency proceedings.
The state, on the other hand, cites to several sister circuit cases and an Eastern District of Texas case for the premise that courts construe § 848(q)(8) narrowly and that state clemency proceedings do not fall under the section. See, e.g., Sterling v. Scott, 57 F.3d 451 (5th Cir. 1995); In Re Lindsay, 875 F.2d 1502 (11th Cir. 1989); Chambers v. Johnson, 133 F. Supp.2d 931 (E.D. Tex. 2001). In Sterling, the petitioner had not exhausted all of his state post-conviction claims. 57 F.3d at 454. Based on this premise, the Fifth Circuit reasoned that § 848(q)(8) did not authorize appointment of attorneys to pursue proceedings in state courts to exhaust petitioner's claims. Id. at 456-57. In Lindsey, the petitioner also had state judicial relief available, thus the Eleventh Circuit declined to construe § 848(q)(8) to allow for a federally paid lawyer and psychiatrist to pursue state court remedies. 875 F.3d at 1504. Based on the Sterling and Lindsey decisions, the Chambers court expressly rejected the plain meaning statutory analysis, finding that only federal clemency proceedings were covered under § 848(q)(8). Chambers, 133 F. Supp.2d at 934-35.
These cases are not persuasive. Not only do they contradict the plain reading of the statute, Sterling and Lindsey are based on petitioners who had not exhausted their state post-conviction remedies. In fact, the Sterling court acknowledged that after the petitioner had exhausted his state court remedies, he could re-file his federal petition and "properly invoke his right to federally paid counsel for `every subsequent stage of available judicial proceedings' — a term we find unnecessary to define further in these proceedings." Sterling, 57 F.3d at 458.
III CONCLUSION
For the foregoing reasons, Cloutier's Motion for Appointment of Counsel to Represent Petitioner in State Clemency Proceedings [33-1] is GRANTED. Cloutier's counsel in his federal habeas proceedings will represent him in his state clemency proceedings. The court sets appointed counsel Ravitz and Palles' fee rate at $125 an hour for in-court and out-of court time that is reasonably necessary to represent Cloutier in his state clemency proceedings.