In re Hearn

• Decision Date: 06 July 2004
• Docket Number: No. 04-10245.,No. 04-70010.,04-10245.,04-70010.
• Citation: 376 F.3d 447
• Parties: In Re: Yokamon Laneal HEARN, Movant. Yokamon Laneal Hearn, Petitioner-Appellant, v. Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.3d 447

In Re: Yokamon Laneal HEARN, Movant Yokamon Laneal Hearn, Petitioner-Appellant, v. Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 04-10245.

No. 04-70010.

United States Court of Appeals, Fifth Circuit.

July 6, 2004.

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Morris H. Moon, James William Marcus (argued), Texas Def. Serv., Houston, TX, for Hearn.

Edward Larry Marshall (argued), Austin, TX, for Dretke.

Transfer Order from the United States District Court and Appeal from the United States District Court from the Northern District of Texas.

Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Yokamon Laneal Hearn, an indigent Texas inmate seeking to challenge his death sentence pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), moves this Court to appoint counsel to prepare his application for authority to file a successive federal habeas corpus petition, and to stay his execution pending the disposition of such petition. For the following reasons, the motions to appoint counsel and stay the execution are GRANTED.

I.

Hearn was convicted of capital murder in Texas and sentenced to death. He appealed to the Texas Court of Criminal Appeals, which affirmed both the conviction and sentence. Hearn v. State, No. 73,371 (Tex.Crim.App. Oct. 3, 2001) (per curiam). The Supreme Court later denied Hearn's petition for writ of certiorari. Hearn v. Texas, 535 U.S. 991, 122 S.Ct. 1547, 152 L.Ed.2d 472 (2002).

After Hearn was denied state post-conviction relief, Ex parte Hearn, No. 50,116-01 (Tex.Crim.App. Nov. 14, 2001), he filed a federal habeas petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas. On July 11, 2002, the district court granted summary judgment on behalf of the Director of the Texas Department of Criminal Justice ("Director"), thereby denying Hearn's request for federal habeas relief. Hearn v. Cockrell, No. 3:01-CV-2551-D, 2002 WL 1544815 (N.D.Tex. July 11, 2002). Both the district court and this Court denied Hearn's application for a certificate of appealability ("COA"), finding that he had failed to make a substantial showing of the denial of a constitutional right. Hearn v. Cockrell, No. 02-10913, 73 Fed.Appx. 79 2003 WL 21756441 (5th Cir. June 23, 2003). On November 17, 2003, the Supreme Court denied Hearn's petition for writ of certiorari. Hearn v. Dretke, ___ U.S. ___, 124 S.Ct. 579, 157 L.Ed.2d 440 (2003). The State of Texas scheduled Hearn's execution for March 4, 2004.

On March 2, 2004, Hearn filed a successive application for state post-conviction relief, claiming that he is mentally retarded and that his death sentence is cruel and unusual punishment under the Eighth Amendment. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). On March 3, 2004, the Texas Court of Criminal Appeals dismissed Hearn's application on the ground that it constituted an abuse of writ, finding that he failed to make a prima facie showing of mental retardation. Ex parte Hearn, No. 50,116-02 (Tex.Crim.App. Mar. 3, 2004). Later that day, Hearn moved the United States District Court for the Northern District of Texas for appointment of counsel pursuant to 21 U.S.C. § 848(q)(4)(B), and for a stay of execution under 28 U.S.C. § 2251. The district court sua sponte transferred the motions to this Court, and Hearn filed a separate notice of appeal — asking us to reverse the transfer order, appoint counsel, and enter a stay of execution.¹ In order to thoroughly address Hearn's claim, we granted a temporary stay of execution, requested supplemental briefing, and heard oral argument.

II.

A. Appointment of counsel

The legality of Hearn's detention was determined on a prior application for a writ of habeas corpus. Hearn v. Dretke, ___ U.S. ___, 124 S.Ct. 579, 157 L.Ed.2d 440 (2003). "Before a second or successive application [for a writ of habeas corpus] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). In order to facilitate the preparation of his application for § 2244(b)(3)(A) authority, Hearn now moves this Court to appoint counsel pursuant to 21 U.S.C. § 848(q)(4)(B).²

(1) Scope of § 848(q)(4)(B)

The Director contends that § 848(q)(4)(B) does not authorize the appointment of counsel to prepare an application for authority to file a successive habeas writ petition. We disagree.

Section 848(q)(4)(B) provides that:

In any post conviction proceeding under section 2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9). 21 U.S.C. § 848(q)(4)(B) (emphasis added). Significantly, this provision expressly incorporates subsection (q)(8), which states that

each 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) (emphases added). On their face, these statutes grant indigent capital prisoners a mandatory right to qualified legal counsel and reasonably necessary legal services in all federal post-conviction proceedings. Needless to say, this is not language of limitation.³

The expansive nature of § 848(q)(4)(B) is further evinced by the Supreme Court's decision in McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). The question before the Court was whether a motion to appoint counsel under § 848(q)(4)(B) qualified as a "post-conviction proceeding under section 2254 or 2255," invoking the district court's jurisdiction and allowing it to appoint counsel and grant a stay of execution. The language of § 2254 and § 2255 make no reference to motions to appoint counsel, and a simple reading of the habeas statutes would lead one to believe that a motion to appoint counsel would not be a "post conviction proceeding under section 2254 or 2255." The McFarland Court, however, heeded Congress's concern for unrepresented capital prisoners and came to the opposite conclusion, holding that the right to the appointment of counsel adheres before the filing of a formal habeas corpus petition.

This interpretation is the only one that gives meaning to the statute as a practical matter. Congress' provision of a right to counsel under § 848(q)(4)(B) reflects a determination that quality legal representation is necessary in capital habeas corpus proceedings in light of "the seriousness of the possible penalty and ... the unique and complex nature of the litigation."

...

[C]riminal defendants are entitled by federal law to challenge their conviction and sentence in habeas corpus proceedings. By providing indigent capital defendants with a mandatory right to qualified legal counsel in these proceedings, Congress has recognized that federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty.

McFarland, 512 U.S. at 855, 859, 114 S.Ct. 2568 (quoting 21 U.S.C. § 848(q)(7)). The McFarland Court's explanation of Congress's intent to provide capital prisoners with habeas counsel, and its illustration of how far it was willing to go to effectuate that intent, guide our analysis in this case.

The Director asserts that the relief recognized in McFarland is limited to those capital prisoners who have not yet filed an initial habeas petition. Such a contention is without merit. While the petitioner in McFarland was indeed pursuing his first federal habeas writ, no language in the Supreme Court's opinion limits its holding to initial petitions. We note, however, that the Court did place special emphasis on the necessity of counsel during the initial investigation of potential habeas claims. McFarland explains that Congress, through § 848(q)(4)(B), granted indigent capital prisoners the opportunity to investigate and research the factual bases of possible habeas claims. Id. at 855, 114 S.Ct. 2568 (discussing the right to "[t]he services of investigators and other experts [that] may be critical in the preapplication phase of a habeas corpus proceeding, when possible claims and their factual bases are researched and identified"); id. at 858 (recognizing the importance of the petitioner's "opportunity" to "meaningfully ... research and present [his] habeas claims"). The Court found that McFarland — who was without counsel, and was pursuing previously unavailable habeas relief — was denied this opportunity to investigate the factual bases of his potential habeas claims. It seems clear to us that the McFarland Court would have been just as concerned with a capital prisoner in need of investigating a successive habeas petition, based on a claim previously unavailable to the prisoner, as it was with the capital prisoner seeking to file an initial petition. Under both scenarios, the prisoner has been denied the opportunity to conduct an initial investigation into the factual bases of a potential habeas claim.

One of our cases, however, includes language suggesting that indigent capital prisoners are never entitled to the appointment of c...