Alcegaire v. Sec'y, Fla. Dep't of Corr.
| Docket Number | Case No. 8:21-cv-2244-KKM-TGW |
| Decision Date | 01 March 2022 |
| Citation | 588 F.Supp.3d 1267 |
| Parties | Johnathan I. ALCEGAIRE, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Carol A. Wright, Gregory W. Brown, Federal Public Defender's Office, Tampa, FL, David Dixon Hendry, Cortney Hackett, James L. Driscoll, Jr., Capital Collateral Regional Counsel Middle Region, Temple Terrace, FL, Gerod John Hooper, Wesley Chapel, FL, for Petitioner.
Congress provides federal funding for appointment of counsel to state prisoners sentenced to death "[i]n any post conviction proceeding under section 2254." 18 U.S.C. § 3599(a)(2). Although earlier cases have hinted, none have held that this right materializes before the conclusion of state postconviction proceedings at a time when a federal district court could not entertain unexhausted federal claims. Indeed, binding Eleventh Circuit precedent—although a subsequent case diminished some of its reasoning—remains clear: a petitioner who "has not exhausted all available state remedies" is not entitled to appointed counsel under the federal statute. In re Lindsey , 875 F.2d 1502, 1506 (11th Cir. 1989) (per curiam). Despite Lindsey , the commonplace practice within this District is for the Capital Habeas Unit of the Office of the Federal Public Defender for the Middle District of Florida (CHU) to seek appointment at the conclusion of direct review in state court. These requests are regularly granted, (Doc. 8 at 10–11), though likely because they go unchallenged.
So too here. The CHU, acting on behalf of Johnathan Alcegaire, moves for appointment as Alcegaire's federal habeas counsel. (Doc. 1.) But Alcegaire's appointed counsel in state court, the Capital Collateral Regional Counsel-Middle Region (CCRC-M), objects, arguing concurrent counsel is not in Alcegaire's best interest. (Doc. 5.) While CHU's motion was pending, Alcegaire, acting pro se, filed a separate motion requesting appointment of federal habeas counsel. (Doc. 11.) Setting aside Alcegaire's waiver of any potential conflict of dual representation and whether the CCRC-M is already providing "adequate representation," 18 U.S.C. § 3599(a)(2), the Court denies the motion without prejudice because Alcegaire has not yet exhausted his state postconviction remedies and therefore the request is both premature as a statutory matter and not ripe as a constitutional one.
Alcegaire was sentenced to death after a state court jury convicted him of three counts of first-degree murder. On September 9, 2021, the Florida Supreme Court affirmed Alcegaire's convictions and sentences. Alcegaire v. State , 326 So. 3d 656 (Fla. 2021). A few days later, on September 21, 2021, CHU filed the motion to be appointed as federal habeas counsel. (Doc. 1.) As they acknowledge, Alcegaire recently began "new state post-conviction proceedings." (Id. at 3.)
Due to Alcegaire's indigency, the State of Florida has appointed and paid for his counsel in state court since 2016. (Id. at 1.) Though his state post-conviction proceedings were ongoing and Alcegaire was represented at the time, CHU consulted with Alcegaire regarding appointment of federal habeas counsel. (Id. at 4.) At that meeting, Alcegaire expressed his desire that CHU be appointed for any future federal habeas claims. (Id. ) Proceeding with that authorization, CHU filed this motion. (Id. )
Alcegaire's current counsel in state court objects to the appointment. (Doc. 5 at 1). CCRC-M claims that CHU did not talk with Alcegaire's counsel prior to meeting with him and that they were not present to inform Alcegaire of the dangers of concurrent representation. (Id. at 3.) After CCRC-M's objection, to which Alcegaire consented, (Doc. 9 at 2), CHU met with Alcegaire again—and again without the permission or presence of his current counsel, (Doc. 8 at 5; Doc. 9 at 2). At that meeting, Alcegaire "reaffirmed" his desire that CHU represent him in federal habeas proceedings. (Doc. 8 at 5.) Most recently, Alcegaire wrote a letter to CCRC-M, repeating his desire for CHU's appointment, (Doc. 10 at 2), and filed a separate pro se motion requesting appointment of federal habeas counsel, (Doc. 11). Alcegaire's motion does not specify whether he would prefer CHU, CCRC-M, or some other entity appointed as his federal habeas counsel.
An indigent state prisoner who challenges his death sentence under 28 U.S.C. § 2254 is entitled to federally funded counsel:
In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation ... shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).
18 U.S.C. § 3599(a)(2). The statute conditions the entitlement to counsel on the existence of a "post conviction proceeding under section 2254." Id. However, it does not define a "post conviction proceeding" or "state how such a proceeding shall be commenced." McFarland v. Scott (McFarland I ), 512 U.S. 849, 854, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). Interpreting this phrase, the Supreme Court has determined that "the right to appointed counsel adheres prior to the filing of a formal, legally sufficient habeas corpus petition." Id. at 855, 114 S.Ct. 2568.
CHU requests that this Court appoint it as counsel for Alcegaire's potential future federal habeas claims. CHU claims that § 3599 entitles Alcegaire to court-appointed counsel because he is indigent and has received a capital sentence. Although Alcegaire has other counsel who are pursuing his state postconviction remedies, CHU argues that it is necessary to appoint federal habeas counsel now due to the complexity of his case. Preparing now might be prudent.1 Even so, the law does not permit this Court to appoint counsel (and authorize payment from the federal fisc) for an anticipated federal habeas petition—a petition that is not ripe and may be years away from becoming so.
CHU's and Alcegaire's motions raise a little discussed question. Namely, whether a state prisoner is entitled to appointed counsel under § 3599 before he has exhausted any of his state postconviction remedies. This Court answers that question in the negative.2
A state prisoner is procedurally barred from federal habeas relief until he has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). These remedies include postconviction relief. Ordinarily, district courts must dismiss unexhausted claims. See Rose v. Lundy , 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (); Rhines v. Weber , 544 U.S. 269, 274, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (). Alcegaire is litigating his case in state court. Accordingly, Alcegaire could not file a viable federal habeas petition now. And the Eleventh Circuit has held that a petitioner who "has not exhausted all available state remedies" is not entitled to appointed counsel. Lindsey , 875 F.2d at 1506 (). This holding squarely forecloses Alcegaire's motion.
Alcegaire argues—or at least assumes—that he is entitled to counsel regardless. Perhaps Alcegaire does not know of Lindsey . He certainly does not cite it in either motion. Or perhaps he believes it was overruled by the Supreme Court's later holding in McFarland I . If so, Alcegaire is mistaken.
In McFarland I , the petitioner was convicted and sentenced to death by a Texas court. See McFarland I , 512 U.S. at 851, 114 S.Ct. 2568. After his conviction was affirmed on direct review, the Supreme Court denied certiorari. McFarland filed a pro se motion in a state trial court requesting appointment of counsel and a stay of execution. The trial court and the Texas Court of Criminal Appeals denied McFarland's request. At this juncture, with less than ten days remaining before his scheduled execution, the state courts had denied all of McFarland's requests. He had no ongoing state court proceeding. As far as Texas was concerned, the only "proceeding" left was McFarland's execution. To stave off this result, McFarland—without first filing a § 2254 petition—moved for appointment of counsel and a stay of execution in a federal district court.
The question presented at the Supreme Court was "whether a capital defendant must file a formal habeas corpus petition in order to invoke th[e] statutory right [to counsel]." Id. at 851, 114 S.Ct. 2568. The Court held that, for purposes of the statute,3 "the right to appointed counsel adheres prior to the filing of a formal, legally sufficient habeas corpus petition." Id. at 855, 114 S.Ct. 2568. To address the triggering language in the statute, the Court concluded that "a ‘post conviction proceeding’ ... is commenced by the filing of a death row defendant's motion requesting the appointment of counsel for his federal habeas corpus proceeding." Id. at 856–57, 114 S.Ct. 2568.4 It reasoned that a petitioner was not required to file a federal habeas petition "without counsel in order to obtain counsel." Id. at 856, 114 S.Ct. 2568. In other words, it decided "how a capital defendant's right to counsel" was invoked. Id. at 855, 114 S.Ct. 2568. The Court did not purport to address when a petitioner may invoke that right. Nor did the Court consider whether a failure to exhaust state court remedies is an independent reason to deny appointed counsel.5 Since McFarland I did not address the question decided in Lindsey , the latter remains controlling. See King v. Moore , 312 F.3d 1365, 1366 (...
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