Moseley v. Freeman, 6:97-CV-00171.

• Decision Date: 28 February 1997
• Docket Number: No. 6:97-CV-00171.,6:97-CV-00171.
• Citation: 977 F.Supp. 733
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Carl Stephen MOSELEY, Petitioner, v. Franklin FREEMAN, Secretary of Correction, Respondent.

977 F.Supp. 733

Carl Stephen MOSELEY, Petitioner, v. Franklin FREEMAN, Secretary of Correction, Respondent.

No. 6:97-CV-00171.

United States District Court, M.D. North Carolina, Winston-Salem Division.

February 28, 1997.

Paul Macallister Green, Durham, NC, Jonathan Broun, Center for Death Penalty Litigation, Durham, NC, for petitioner.

Valerie B. Spalding, N.C. Department of Justice, Raleigh, NC, for James B. French.

ORDER

ELIASON, United States Magistrate Judge.

Carl Stephen Moseley, a prisoner of the State of North Carolina, has been sentenced to death in two separate cases. He has filed a motion in this Court pursuant to 21 U.S.C. § 848(q)(4)(B) for the appointment of counsel to represent him to prepare his federal Section 2254 petitions for writs of habeas corpus for each state case.¹

At one time there was a question over whether the federal court had authority to appoint counsel to challenge state court convictions prior to the filing of a federal habeas corpus petition pursuant to 18 U.S.C. § 2254. That has changed for death penalty cases such as the instant ones. Section 848(q)(4)(B) has been interpreted by the Supreme Court in McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), as permitting the appointment of counsel in death penalty Section 2254 cases for the purposes of preparing a Section 2254 petition. However, this preparation does not include work to exhaust state court remedies prior to filing the federal petition. In re Joiner, 58 F.3d 143 (5th Cir.1995); Weeks v. Jones, 100 F.3d 124, 126 n. 7 (11th Cir.1996) (citing In re Lindsey, 875 F.2d 1502 (11th Cir.1989) (Section 848(q)(4)(B) does not require federal financing to exhaust state post-conviction claims)).

The qualified petitioner initiates a "post-conviction proceeding" within the meaning of Section 848(q)(4)(B) by requesting appointment of counsel to prepare and file the Section 2254 petition. McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666. The federal court should then appoint counsel and set the date for the filing of the petition.

The statutory procedure of Section 848(q)(4)(B) pre-supposes that the petitioner has a present right to file a Section 2254 post-conviction proceeding. This normally occurs when state post-conviction proceedings have been exhausted. See Sterling v. Scott, 57 F.3d 451 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 715, 133 L.Ed.2d 669 (1996) (petitioner failed to exhaust his state court remedies and lost his right to federally supplied counsel until he cured the defects and was in a position to file a new Section 2254 petition). However, in extraordinary circumstances, the appointment may be made even if state post-conviction proceedings have not been completed. McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (stay of execution). The exceptional circumstances must be set out in the application. See Death Row Prisoners of Pennsylvania v. Ridge, 948 F.Supp. 1278 (E.D.Pa.1996). Following this reasoning to its ultimate conclusion, this Court interprets Section 848(q)(4)(B) to require that, absent extraordinary circumstances, a petitioner must complete both his first direct appeal and post-conviction proceedings in order to be in a position to request court appointed counsel to file a Section 2254 petition.

In the instant case, petitioner has exhausted his post-conviction remedies in state court as to one of the convictions, but not to the other. Petitioner was convicted in the Stokes County Superior Court in 1993 of first-degree murder, first-degree rape and first-degree sexual assault and received a sentence of death and two consecutive life terms. (State v. Moseley, Nos. 91-CRS-5325, -5326, & -5327) He has completed both his direct appeal and state post-conviction proceedings in state court because the North Carolina Supreme Court denied a petition for a writ of certiorari with respect to the motion for appropriate relief on October 10, 1996. Petitioner's second death sentence for murder was received from the Superior Court in Forsyth County in 1992. (State v. Moseley, No. 91-CRS-32338) He has completed his direct appeal. His post-conviction proceedings in state court are not final, however because he must file a petition for a writ of certiorari in the North Carolina Supreme Court. Thus, petitioner has not exhausted his state post-conviction proceedings as to the Forsyth County case.²

Petitioner's application clearly shows that his state post-conviction proceedings, with respect to the Forsyth County conviction, have not been completed. The Stokes County post-conviction proceeding is final except that petitioner states that he intends to file a timely petition for certiorari to the United States Supreme Court as to both state post-conviction proceedings.

The first question before the Court is whether actual or potential Supreme Court certiorari review of state post-conviction proceedings should be counted as part of the time during which the state post-conviction proceeding is pending for purposes of the appointment of counsel provision in 21 U.S.C. § 848(q)(4)(B). The Court has not found any case directly on point, but for the following prudential reasons determines that the purposes of 21 U.S.C. § 848(q)(4)(B) would be best served by not recognizing and including such time period.

First, a petitioner need not procure certiorari review by the United States Supreme Court in order to satisfy the exhaustion requirement or to confer jurisdiction on a federal court to entertain a Section 2254 petition. Fay v. Noia, 372 U.S. 391, 435-38, 83 S.Ct. 822, 847-49, 9 L.Ed.2d 837 (1963) (certiorari); County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 149 n. 7, 99 S.Ct. 2213, 2220 n. 7, 60 L.Ed.2d 777 (1979) (Noia applied to direct appeal). The Supreme Court is not part of a state court, nor is review by it part of a state proceeding. Fay v. Noia, 372 U.S. at 436, 83 S.Ct. at 847-48.

The decision in Fay v. Noia, supra, overturned existing precedent,³ but was largely prudential. First, it found that Supreme Court review of state court decisions had by then changed from a normal appellate review process to a discretionary one, where the record was not always fully developed when presented to the Supreme Court. Second, requiring the filing of a certiorari petition in each case had flooded the Supreme Court with petitions, most of which had no merit. Therefore, rather than screening out frivolous cases prior to the filing of Section 2254 petitions in federal district court, the prior rule merely added more work for the Supreme Court. The Supreme Court found that the cost in judicial resources (to the Supreme Court) in requiring that state defendants seek certiorari review prior to filing a Section 2254 petition in federal court far outweighed any benefit in preserving comity between state and federal courts.⁴

While Supreme Court review of state court decisions is not a prerequisite to filing a Section 2254 petition, nothing in the decision of Fay v. Noia would seem to preclude federal courts from recognizing the potential or pendency of such certiorari review as being a part of the exhaustion of remedies process for purposes of 21 U.S.C. § 848(q)(4)(B). Such a situation would arise if the result furthered the conservation of judicial resources without violating other important concerns. The instant death penalty cases could be such a situation.

In death penalty cases, defendants almost always utilize all of the judicial processes available to them. Furthermore, they are not normally interested in speedy review. Delays and stays of execution for purposes of review better serve their purpose of avoiding service of their sentence. For these reasons, death penalty defendants have an interest in filing for certiorari review, and do so. Therefore, in spite of Fay v. Noia, in death penalty cases, the Supreme Court may be burdened with certiorari petitions. Consequently, in order to avoid two federal courts working on the same state conviction at the same time, and for purposes of appointment of counsel under Section 848(q)(4)(B), it might be better to deem a state prisoner as not ready to pursue a federal habeas corpus petition while United States Supreme Court certiorari review of state post-conviction proceedings is still available or pending. Counsel would be appointed when petitioner disclaims certiorari review (1) explicitly (in the Section 848 application), (2) implicitly (through the passage of time), or (3) files a certiorari petition and obtains a decision.⁵

Despite the likely merits of such a construction, recent Congressional amendments and additions to habeas corpus statutes in the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"), Pub.L. No. 104-132, tit. 1, April 24, 1996, renders such an interpretation impractical. In order to expedite the processing of death penalty cases, the AEDPA sets abbreviated limitations periods for bringing and processing the actions in federal court. In this atmosphere, there is no implicit, much less explicit, evidence that Congress intended that federal courts consider United States Supreme Court certiorari review of state post-conviction proceedings to be part of the cognizable time period for filing or processing Section 2254 actions. The changes wrought by the AEDPA will affect this Court's construction of Section 848(q)(4)(B) and the process by which death penalty petitioners apply to the Court for counsel.⁶

The AEDPA establishes three avenues for the review of state death penalty cases by the federal courts. The first division includes those cases which come under the standard review provisions of Chapter 153, 28 U.S.C. §§ 2241-2255. This category of cases is reviewed in essentially the manner as before except for the AEDPA modifications providing a more deferential review standard, a more stringent limitation on successive petitions, and a one-year limitation...