Lowery v. Anderson, No. IP96-0071-C H/G.

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Writing for the CourtHamilton
Citation138 F.Supp.2d 1123
Decision Date13 April 2001
Docket NumberNo. IP96-0071-C H/G.
PartiesJim LOWERY, Petitioner, v. Rondle ANDERSON, Superintendent, Respondent.
138 F.Supp.2d 1123
Jim LOWERY, Petitioner,
v.
Rondle ANDERSON, Superintendent, Respondent.
No. IP96-0071-C H/G.
United States District Court, S.D. Indiana, Indianapolis Division.
April 13, 2001.

Monica Foster, Brent Westerfield, Indianapolis, IN, for Plaintiff.

Page 1124

Robert L. Collins, Deputy Atty. Gen., Indianapolis, IN, for Defendant.

ENTRY ON PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL FOR STATE CLEMENCY PROCEEDINGS

HAMILTON, District Judge.


Indiana has sentenced petitioner Jim Lowery to death for the murders of Mark and Gertrude Thompson. Lowery's murder convictions and death sentence have been upheld on direct appeal, Lowery v. State, 478 N.E.2d 1214 (Ind.1985), on post-conviction review in the state courts, Lowery v. State, 640 N.E.2d 1031 (Ind.1994), and in this proceeding for federal habeas review, Lowery v. Anderson, 225 F.3d 833 (7th Cir.2000). The Supreme Court of the United States has denied certiorari petitions seeking review of each of those decisions. The last denial of certiorari occurred on April 2, 2001. On April 6, 2001, the State of Indiana moved before the Supreme Court of Indiana to set an execution date.

Pursuant to 21 U.S.C. § 848(q), this court previously appointed attorneys Monica Foster and Brent Westerfeld to represent Lowery in this federal habeas action. Lowery filed in this court on April 10, 2001, a petition to have the same attorneys appointed to represent him in state clemency proceedings and to have them compensated with federal funds. As the Eighth Circuit recognized in Hill v. Lockhart, 992 F.2d 801, 803 (8th Cir.1993), such an appointment is appropriate under the plain language of 21 U.S.C. § 848(q)(4) & (q)(8).

Under 21 U.S.C. § 848(q)(4)(B), an indigent person like Lowery seeking federal habeas relief from a state death sentence "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)." Under 21 U.S.C. § 848(q)(8), such appointed attorneys shall, unless replaced by others, "represent the defendant throughout every subsequent stage of available judicial proceedings, * * * and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." In Hill v. Lockhart, the Eighth Circuit observed: "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." 992 F.2d at 803.

The Eighth Circuit in Hill affirmed a district court's denial of compensation for an attorney's services in state clemency proceedings, but it did so for reasons that do not apply here. The Eighth Circuit explained that an appointment with respect to competency or clemency proceedings is appropriate only if the court is satisfied both (a) that the request is made as part of a non-frivolous federal habeas corpus proceeding and (b) that state law provides no avenue to obtain compensation for the same services. 992 F.2d at 803. The Hill court also noted that, in most cases, counsel seeking compensation for work in...

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2 practice notes
  • Hain v. Mullin, No. 05-5039.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 23, 2006
    ...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 persua......
  • Hickey v. Schomig, No. 02 C 2443.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 16, 2002
    ...the decisions of at least three district courts, see Cloutier v. Schomig, No. 00 C 5476 (N.D. Ill. June 12, 2002); Lowery v. Anderson, 138 F.Supp.2d 1123, 1125 (S.D.Ind.2001); Strickler v. Greene, 57 F.Supp.2d 313, 317-18 (E.D.Va.1999). One Circuit has reached the opposite conclusion, see C......
2 cases
  • Hain v. Mullin, No. 05-5039.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 23, 2006
    ...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 persua......
  • Hickey v. Schomig, No. 02 C 2443.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 16, 2002
    ...the decisions of at least three district courts, see Cloutier v. Schomig, No. 00 C 5476 (N.D. Ill. June 12, 2002); Lowery v. Anderson, 138 F.Supp.2d 1123, 1125 (S.D.Ind.2001); Strickler v. Greene, 57 F.Supp.2d 313, 317-18 (E.D.Va.1999). One Circuit has reached the opposite conclusion, see C......

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