Samayoa v. Davis
| Decision Date | 03 July 2019 |
| Docket Number | No. 18-56047,18-56047 |
| Citation | 928 F.3d 1127 |
| Parties | Richard Gonzales SAMAYOA, Petitioner-Appellant, v. Ron DAVIS, Warden of the California State Prison at San Quentin, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
We are asked to decide in this case whether 18 U.S.C. § 3599 permits federal appointment of additional counsel to represent a California death-row prisoner who is seeking state clemency where the State of California also provides for state clemency counsel. We have jurisdiction under 28 U.S.C. § 2253 and we conclude the statute so permits. We remand to the district court to determine whether appointment of additional counsel to represent Richard Samayoa is appropriate under the statute.
Richard Samayoa was convicted in 1988 of a double murder and sentenced to death. He exhausted all state remedies when the California Supreme Court summarily denied review of his state habeas petition in 2000. In 2001, Glen Niemy, a sole practitioner, was appointed as Samayoa’s federal habeas counsel pursuant to a statute now codified at 18 U.S.C. § 3599(a)(2). In 2002, Niemy was also appointed by the California Supreme Court "for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including preparation and filing of a petition for clemency with the Governor of California, as appropriate."
Niemy, together with another attorney appointed in 2001, represented Samayoa in his federal 28 U.S.C. § 2254 habeas proceedings. The district court denied Samayoa’s habeas petition in 2009. Samayoa v. Ayers , 649 F. Supp. 2d 1102 (S.D. Cal. 2009). A divided panel of this Court affirmed, Samayoa v. Ayers , 649 F.3d 919 (9th Cir. 2011), and the Supreme Court denied certiorari, 565 U.S. 1211, 132 S. Ct. 1564, 182 L.Ed.2d 188 (2012).
Niemy’s appointed federal habeas co-counsel left the practice of law. Six years after the denial of certiorari, on May 14, 2018, Samayoa, now represented only by Niemy, moved in federal district court for the appointment of additional counsel from the Federal Public Defender Services for the District of Arizona (FPD-AZ). In the motion, Niemy wrote that he had been working on Samayoa’s case alone on a pro bono basis, "with the exception of a limited number of hours compensated by the California Supreme Court," but could "no longer afford to do so." He supplied a list of "remaining tasks," including a full clemency investigation and petition, as well as the filing of petitions under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Ford v. Wainwright , 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). He informed the court that he "has never done a clemency proceeding and needs the expertise of an agency accustomed to such a process." He identified FPD-AZ as such an agency and noted that FPD-AZ had already appeared as clemency counsel in ten cases, including three outside of Arizona and two as "co-counsel with [court-appointed] counsel." Niemy also wrote that neither he nor FPD-AZ was seeking separate federal funding as part of the motion.
The district court denied Samayoa’s motion, concluding that because California provides for state-appointed clemency counsel, "Petitioner does not appear to qualify for the appointment of federal counsel under § 3599(a)(2)." The court reasoned that "it seems appropriate to direct [the] application [for additional counsel] to the court that previously appointed counsel for [clemency] proceedings, in this case the California Supreme Court." Samayoa filed a motion for reconsideration, which the district court also denied.
Samayoa timely appealed.
The statute at issue, 18 U.S.C. § 3599, provides for federal appointment and compensation of counsel for indigent defendants in capital cases. Section 3599(a)(1), which provides for federal appointment of trial and sentencing counsel, applies only to federal defendants. See Harbison v. Bell , 556 U.S. 180, 186, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009). Section 3599(a)(2) provides for federal appointment of counsel for death-row petitioners seeking federal habeas relief, whether the petitioner was convicted in state or federal court:
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 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 sections (b) through (f).
Section 3599(e) extends the appointment of such attorneys to further proceedings:
Unless replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings,... and shall also represent the defendant in such competency proceedings and for executive or other clemency as may be available to the defendant .
(Emphasis added.) Section 3599(f) provides that once federal habeas counsel has been appointed, he or she can seek "investigative, expert, or other services ... reasonably necessary for the representation of the defendant."
In Harbison v. Bell , 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009), the Supreme Court held that an attorney’s representation under § 3599(e) includes state clemency proceedings. In that case, a petitioner’s federal habeas counsel sought to expand the scope of her representation after "the Tennessee Supreme Court held that state law does not authorize the appointment of state public defenders as clemency counsel." Id. at 182, 129 S.Ct. 1481. The Supreme Court framed the question as "whether 18 U.S.C. § 3599 authorizes counsel appointed to represent a state petitioner in 28 U.S.C. § 2254 proceedings to represent him in subsequent state clemency proceedings." Id. at 183–84, 129 S.Ct. 1481.
Beginning with a "straightforward reading of the statute," the Court concluded, "Because state clemency proceedings are ‘available’ to state petitioners who obtain representation pursuant to subsection (a)(2), the statutory language indicates that appointed counsel’s authorized representation includes such proceedings." Id. at 185–86, 129 S.Ct. 1481. The Court noted that "Congress’ sequential enumeration" in § 3599(e) "emphasizes continuity of counsel." Id. at 193, 129 S.Ct. 1481. The Court posited that "Congress likely appreciated that federal habeas counsel are well positioned to represent their clients in the state clemency proceedings that typically follow the conclusion of § 2254 litigation" because "the work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application." Id. The Court noted that, in Harbison’s case, habeas counsel had uncovered a Brady violation that, although procedurally defaulted, could "be marshaled" in a state clemency application. Id.
In conclusion, the Court held "that § 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation." Id. at 194, 129 S.Ct. 1481.
The California Attorney General’s Office (hereinafter "State") argues that the district court can appoint additional counsel under § 3599 only if Samayoa can show "he is unable to obtain adequate representation from the state to pursue executive clemency." We disagree. A district court’s interpretation of a statute is a question of law which we review de novo. Carson Harbor Vill., Ltd. v. Unocal Corp. , 270 F.3d 863, 870 (9th Cir. 2001) (en banc).
To start, it is uncontested that Niemy remains Samayoa’s federally appointed counsel and represents Samayoa in his state clemency proceedings pursuant to that appointment. Niemy’s status as clemency counsel frames the question before us—whether additional clemency counsel may be appointed pursuant to § 3599.
The availability of state appointment of clemency counsel is irrelevant to federally appointed counsel’s ongoing representation of a death-row client in state clemency proceedings. Harbison instructs that the "straightforward" reading of § 3599(e) controls. 556 U.S. at 185, 129 S.Ct. 1481. That section says that, unless replaced, federally appointed habeas counsel "shall represent the defendant ... in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." 18 U.S.C. § 3599(e) (emphasis added). This language does not invite a blanket exception if the state also provides for clemency counsel.
We disagree with the Sixth Circuit’s holding to the contrary in Irick...
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