Hain v. Mullin

• Decision Date: 23 January 2006
• Docket Number: No. 05-5039.,05-5039.
• Citation: 436 F.3d 1168
• Parties: Scott Allen HAIN, Petitioner, v. Mike MULLIN, Warden, Oklahoma State Penitentiary at McAlester, Respondent. United States of America, Appellee, v. Steven M. Presson and Robert W. Jackson, Movants-Appellants. Federal Public Defender, Western District of Oklahoma, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

436 F.3d 1168

Scott Allen HAIN, Petitioner, v. Mike MULLIN, Warden, Oklahoma State Penitentiary at McAlester, Respondent.

United States of America, Appellee, v. Steven M. Presson and Robert W. Jackson, Movants-Appellants.

Federal Public Defender, Western District of Oklahoma, Amicus Curiae.

No. 05-5039.

United States Court of Appeals, Tenth Circuit.

January 23, 2006.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^* Steven M. Presson and Robert W. Jackson, Jackson & Presson, P.C., Norman, OK, for Movants-Appellants.

David E. O'Meilia, United States Attorney, and Kevin Danielson, Assistant United States Attorney, Northern District of Oklahoma, Tulsa, OK, for Appellee.

Susan M. Otto, Federal Public Defender for the Western District of Oklahoma, and Scott W. Braden, Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, OK, filed an amicus curiae brief for the Federal Public Defender for the Western District of Oklahoma in Support of Petitioner-Appellant.

Before TACHA, Chief Circuit Judge, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

We granted initial en banc hearing of this case to consider the reach of 21 U.S.C. § 848(q)(4)(B), which provides federally-funded counsel for indigent state death row prisoners seeking federal habeas relief. Specifically, § 848(q)(4)(B) authorizes "the appointment of one or more attorneys and the furnishing of such other services in accordance with" 21 U.S.C. § 848(q)(8). Section (q)(8) of the statute in turn commands that "each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including . . . proceedings for executive or other clemency as may be available to the defendant." Today, we accord these words their plain meaning and hold that counsel appointed under § 848(q)(4)(B) to represent state death row inmates in 28 U.S.C. § 2254 proceedings are authorized by the statute to represent these clients in state clemency proceedings and are entitled to compensation for clemency representation. In so holding, we REVERSE the judgment of the court below.

I

Scott Allen Hain filed a § 2254 petition seeking relief from a sentence of death imposed by an Oklahoma state court. Hain appealed the denial of habeas relief, which this court affirmed. Hain v. Gibson, 287 F.3d 1224 (10th Cir.2002). Once the Supreme Court denied certiorari, Hain's attorneys Robert W. Jackson and Steven M. Presson filed in the district court an "Ex-Parte Request for the Court to Confirm Continuing Representation Under 21 U.S.C. § 848(q)(8) and to Set Immediate Date for Budget Conference." The district court denied the attorneys' request, finding that the statute under which they were appointed — 21 U.S.C. § 848(q)(4)(B) — does not authorize federal funding for attorneys in state clemency proceedings. Notwithstanding the uncertainty of their funding, counsel commendably represented Hain in state clemency proceedings. They were unsuccessful and Hain was executed.

While clemency representation was ongoing, this court considered the appeal from the district court's order denying counsel's motion. A divided panel of this court affirmed the district court's order. Hain v. Mullin, 324 F.3d 1146 (10th Cir.2003); id. at 1151 (Lucero, J., dissenting). We then decided to hear this matter en banc, but Hain was executed before we disposed of the case. Accordingly, we vacated the panel opinion and vacated the order granting rehearing en banc, determining that the issue presented was moot. Hain v. Mullin, 327 F.3d 1177 (10th Cir.2003) (en banc).

Jackson and Presson subsequently submitted ex parte claim vouchers to the district court seeking payment for their representation of Hain during the clemency proceedings. The court denied payment, ruling that § 848(q)(8) does not authorize federal funding for state clemency representation. Counsel appealed this ruling and we have again decided to consider this matter en banc.

II

The Supreme Court has "stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says. . . ." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). Thus, as always, we begin with the statutory language and must "give effect, if possible, to every clause and word." Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). We will not inquire into Congress's intent if the statutory language is clear. Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir.1986). Rather, "[w]hen confronted with clear and unambiguous statutory language, our duty is simply to enforce the statute that Congress has drafted." United States v. Ortiz, 427 F.3d 1278, 1282 (10th Cir.2005).

Section 848(q) employs clear and precise language, admitting of no ambiguity and leaving no room for interpretation. Congress has directed that "[i]n any post conviction proceeding under section 2254 . . . 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 [paragraph 8]." 21 U.S.C. § 848(q)(4)(B).¹ Unambiguously, this provision states that death row inmates seeking relief under § 2254 — a path exclusive to state prisoners — are entitled to the appointment of attorneys and the furnishing of services described in paragraph 8. See 28 U.S.C. § 2254 (statute applies to "person[s] in custody pursuant to the judgment of a State court"). In turn, paragraph 8 provides: "each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings. . . and shall also represent the defendant in such . . . proceedings for executive or other clemency as may be available to the defendant." § 848(q)(8).²

One need look no further than the statute's plain language to see that Congress has directed that counsel appointed to represent state death row inmates during § 2254 proceedings must "represent the defendant throughout every subsequent stage of available judicial proceedings" including "proceedings for executive or other clemency as may be available to the defendant." Id.³ When Congress required attorneys appointed to represent § 2254 petitioners to pursue "proceedings for executive or other clemency," it must have meant state clemency proceedings given that federal officials have no authority to commute a state court sentence. See U.S. Const., art. II, § 2 (President has "Power to grant Reprieves and Pardons for Offenses against the United States"). Because the President does not have the power acting under the United States Constitution to pardon defendants convicted in state courts, it would be nonsensical to suggest that § 848(q)(8) provides for compensation for counsel to state defendants only in federal clemency proceedings. See Young v. United States, 97 U.S. 39, 66, 24 L.Ed. 992 (1878) ("if there is no offence against the laws of the United States, there can be no pardon by the President."). Acknowledging a circuit split on the issue, we nonetheless see no other logical way to read the statute. As expressed by the Eighth Circuit: "The plain language of § 848(q) evidences a congressional intent to insure that indigent state petitioners receive `reasonably necessary' . . . clemency services from appointed, compensated counsel." Hill v. Lockhart, 992 F.2d 801, 803 (8th Cir.1993); see also Lowery v. Anderson, 138 F.Supp.2d 1123, 1125 (S.D.Ind.2001) ("This court finds the plain language of § 848(q)(8) to be controlling here, consistent with the straightforward and persuasive reasoning of the Eighth Circuit in Hill."); Strickler v. Greene, 57 F.Supp.2d 313, 316 (E.D.Va.1999) (same).

Ignoring the statute's plain meaning, the government urges this court to follow the Eleventh Circuit in concluding that, because § 848(q) is part of 21 U.S.C. § 848, which focuses primarily on punishments for violations of federal drug laws, "the language contained in the sections preceding and following [§ 848(q)(4)(B)] relates more directly to federal criminal trial and appeals, than to habeas cases seeking relief from state court sentences." King v. Moore, 312 F.3d 1365, 1367 (11th Cir.2002).⁴ On that basis, the Eleventh Circuit held that "the word `federal' is an implied modifier for `proceedings,'" as it is used in § 848(q)(8), such that "`proceedings' = the federal proceedings that are available to the defendant." Id. (equals sign in the original).⁵ The Eleventh Circuit does not deny that state death row inmates proceeding under § 2254 are entitled to the furnishing of services in accordance with paragraph 8. Rather, the court amends paragraph 8 to encompass only federal proceedings. Under this amended version of the statute, although a state prisoner is entitled to federally-funded counsel at proceedings for executive or other clemency, such state prisoners will receive representation only at federal clemency proceedings. The analytical complication with this approach is that, as noted, federal clemency proceedings are unavailable to prisoners seeking relief from a state sentence. Moreover, such a reading ignores the plain meaning of the statute, violates the canon of statutory interpretation requiring us to give effect to every word of a statute, and reads the statute out of context.⁶

Adopting the government's interpretation would fail to "give effect, if possible, to every clause and word" of the statute. Duncan, 533 U.S. at 174, 121 S.Ct. 2120. Section 848(q)(8) provides that federally-appointed counsel shall "represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." (Emphasis added). The statute's reference to ...