Opinion
No. 4:21-CV-1384-O
2022-05-20
Amos Joseph WELLS III, Petitioner, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Georgette Patrice Oden, G. Oden PLLC, Cedar Park, TX, Jeremy Don Schepers-FPD, Assistant Federal Public Defender, Dallas, TX, Leigh W. Davis, Bedford, TX, for Petitioner. Eran Shemuel Sharon, Edward L. Marshall, Texas Office of the Attorney General, Austin, TX, for Respondent.
Georgette Patrice Oden, G. Oden PLLC, Cedar Park, TX, Jeremy Don Schepers-FPD, Assistant Federal Public Defender, Dallas, TX, Leigh W. Davis, Bedford, TX, for Petitioner.
Eran Shemuel Sharon, Edward L. Marshall, Texas Office of the Attorney General, Austin, TX, for Respondent.
ORDER DISMISSING PRO SE MOTIONS
Reed O'Connor, UNITED STATES DISTRICT JUDGE
The matters before the Court are (1) Wells’ pro se letter filed May 19, 2022 (ECF No. 15) complaining about his counsels’ failure to visit him in person; (2) Well's pro se motion seeking an Order from this Court directing his former state habeas counsel to turn over Wells’ case file to Wells, filed May 16, 2022 (ECF No. 16); and (3) Wells’ pro se letter filed May 16, 2022 (ECF No. 17) again complaining about his federal habeas counsels’ insistence on communicating with Wells via the mails. Because Wells apparently did not serve any counsel of record with copies of the foregoing pro se pleadings and motions and because none of Wells’ pro se pleadings and motions include neither a certificate of service indicating that he served opposing counsel nor a Certificate of Conference as required by Local Rule CV-7.1(b), this Court STRIKES same.
Wells is currently represented by two attorneys appointed by this court. He is not entitled to hybrid representation in this cause. See McKaskle v. Wiggins , 465 U.S. 168, 182-83, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (there is no constitutional right to hybrid representation); United States v. Villafranca , 844 F.3d 199, 199 (5th Cir. 2016) (holding the same rule applied on appeal); United States v. Ogbonna , 184 F.3d 447, 449 & n.1 (5th Cir. 1999) (holding the same). The Fifth Circuit has recognized the same rule applies in a wide variety of contexts. See United States v. Sanders , 843 F.3d 1050, 1053-54 (5th Cir. 2016) (holding a criminal defendant represents by counsel had no right to file a pro se motion challenging the validity of his plea); Bagwell v. Dretke , 372 F.3d 748, 752 n.6 (5th Cir. 2004) (holding a state habeas corpus applicant had no right to hybrid representation before the state court); United States v. Daniels , 572 F.2d 535, 540 (5th Cir. 1978) (it is settled law that a criminal defendant has no right to hybrid representation). The same rule applies in the state courts. Smith v. Collins , 977 F.2d 951, 962 (5th Cir. 1992) ; Neal v. Texas , 870 F.2d 312, 315-16 (5th Cir. 1989).
Insofar as Wells complains that his former state habeas counsel has failed to furnish him with copies of relevant files, this court has previously explained that such complaints raise only issued of state law and this court can exercise no jurisdiction over same. Ricks v. Lumpkin , 541 F.Supp.3d 733, 734-35 (N.D. Tex. 2021). Disputes between a criminal defendant and his or her former counsel over the custody of case files are routinely resolved in state court after exhaustion of the State Bar of Texas’ grievance system. Id. Complaints about the custody or possession of attorney files raise purely matters of state law. See In re Harris , 491 S.W.3d 332, 335 & n.7 (Tex. Crim. App. 2016) (citing In re McCann , 422 S.W.3d 701, 705-10 (Tex. Crim. App. 2013) (relying exclusively on state law authorities to hold that a client owns his or her trial file)).
Wells was represented during his state habeas corpus proceeding by employees of an agency of the State of Texas, i.e., the Texas Office of Capital and Forensic Writs. Absent an alleged violation of federal law the Eleventh Amendment generally forbids federal court intervention in a civil matter such as Wells’ dispute with his former state habeas counsel. See Whole Woman's Health v. Jackson , ––– U.S. ––––, 142 S. Ct. 522 532, 211 L.Ed.2d 316 (2021) (recognizing that, except when injunctive relief is sought for a violation of federal law, the Eleventh Amendment generally precludes federal court jurisdiction over suits against States, state agencies, and state officials).
Finally, Wells misapprehends this court's role in this federal habeas corpus proceeding. This court does not supervise or micromanage Wells’ federal habeas counsel. Nor can this court dictate the means through which Well's federal habeas counsel choose to communicate with Wells. Despite the foregoing, it is apparent that Wells’ federal habeas counsel would be well advised to make arrangements for a personal meeting with Wells at their earliest convenience to inquire whether any third party has attempted to interfere with their representation of Wells in this cause in violation of applicable ethical or legal standards. To date, Wells’ pro se submissions do not even begin the satisfy the "interests of justice" standard set forth in Martel v. Clair , 565 U.S. 648, 663, 132 S.Ct. 1276, 182 L.Ed.2d 135 (2012), for the substitution of counsel.
It is hereby ORDERED that Wells’ pro se motions and pleadings (ECF Nos. 15-17) are STRICKEN from the record as improper ex parte communications with this court.