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Hurst v. Thomas

United States District Court, M.D. North Carolina

January 30, 2019

EDWARD THOMAS, [1] Warden, Central Prison, Raleigh, North Carolina, Respondent.


          Thomas D. Schroeder United States District Judge.

         On September 10, 2018, the United States Magistrate Judge entered a Memorandum Opinion and Order (Doc. 118) denying Petitioner's Motion for Appointment of “Martinez Counsel” (Doc. 112), which sought appointment of counsel to investigate (and raise in an amended habeas corpus petition) any potential claims not raised in Petitioner's prior post-conviction proceedings. Petitioner filed objections (Doc. 119) to the Magistrate Judge's Order.

         The court must “modify or set aside any part of the [Magistrate Judge's O]rder that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). The court has appropriately reviewed Petitioner's objections and finds that the Magistrate Judge's Order is not clearly erroneous or contrary to law, except as to the statute of limitations issue. The court therefore affirms the Magistrate Judge's Order, except as to the statute of limitations issue.

         In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 9. Where a federal habeas petitioner sentenced to death in state court is appointed the same counsel (pursuant to 18 U.S.C. § 3599(a)(2)) as the petitioner had at his initial-review collateral proceedings, however, a “clear conflict of interest” arises. Juniper v. Davis, 737 F.3d 288, 289 (4th Cir. 2013) (quoting Gray v. Pearson, 526 Fed.Appx. 331, 334 (4th Cir. 2013) (unpublished)). That is because such a situation would appear to obligate “[petitioner's] counsel to identify and investigate potential errors that they themselves may have made in failing to uncover ineffectiveness of trial counsel while they represented [petitioner] in his state post-conviction proceedings.” Id. at 289-90 (alterations in original) (quoting Gray, 526 Fed.Appx. at 334). As a result, the Fourth Circuit has held that:

[I]f a federal habeas petitioner is represented by the same counsel as in state habeas proceedings, and the petitioner requests independent counsel in order to investigate and pursue claims under Martinez in a state where the petitioner may only raise ineffective assistance claims in an “initial review collateral proceeding, ”[2] qualified and independent counsel is ethically required.

Id. at 290 (footnote added).

         During the original pendency of Petitioner's federal habeas petition, filed in September 2010, Petitioner was represented by the same counsel who handled his North Carolina initial review collateral proceeding: Robert H. Hale, Jr. and Daniel J. Dolan. (Docs. 1, 10.) Although Martinez was decided in March 2012 and the court did not rule on Petitioner's habeas petition until March 2013, Petitioner did not request independent counsel. In March 2013, the court entered summary judgment against Petitioner on all thirteen of his claims, but granted a certificate of appealability with respect to one - a juror misconduct claim. (Doc. 67.) The Fourth Circuit reversed on the juror misconduct claim and “remand[ed] for an evidentiary hearing to determine whether the [misconduct] had a substantial and injurious effect or influence on the jury's verdict.” (Doc. 79 at 2.) In November 2015, after the Supreme Court denied certiorari, the case was referred back to the Magistrate Judge to carry out the Fourth Circuit's mandate. In December 2015, Elizabeth Hambourger was appointed as second counsel[3] for Petitioner. (Doc. 95.) In October 2017, Hambourger filed the instant “Motion for Appointment of ‘Martinez Counsel.'” (Doc. 112.) The Magistrate Judge denied the motion as barred by the mandate rule, as moot and/or untimely, and as futile in light of the statute of limitations. (Doc. 118.) Petitioner now objects.

         Petitioner first argues that the mandate rule does not apply here because the Martinez issue was not “expressly or impliedly decided, ” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), by the Fourth Circuit. (Doc. 119 at 5.) “But the mandate rule forecloses litigation of issues forgone on appeal or otherwise waived, for example because they were not raised in the district court.” United States v. Pileggi, 703 F.3d 675, 679 (4th Cir. 2013) (internal quotation marks, emphasis, and ellipsis omitted). Parties are “not permitted to ‘use the accident of a remand to raise an issue that [they] could just as well have raised in the first appeal.'” Id. at 680 (ellipsis omitted) (quoting United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996)). Since Petitioner did not request independent counsel prior to this court entering final judgment, and since the Fourth Circuit only remanded the case for further consideration of Petitioner's juror misconduct claim, allowing an appointment of independent counsel to pursue Martinez claims would permit Petitioner to use the “accident of a remand” to pursue claims he could have pursued prior to the court's final judgment. This runs afoul of the mandate rule. See Barnes v. Thomas, No. 1:08cv271, 2018 WL 3659016, at *9 (M.D. N.C. Aug. 2, 2018), appeal docketed, No. 18-5 (4th Cir. Sept. 4, 2018) (“To the extent Barnes's motion for new counsel is predicated on a desire to pursue a claim pursuant to Martinez, such a claim is futile because it exceeds the scope of the Fourth Circuit's remand in this case.”).

         Petitioner responds that he was not “in a position to request” independent counsel during the original pendency of his habeas case because he was not then represented by conflict-free counsel. (Doc. 119 at 6.) But while Dolan and Hale were certainly conflicted as to actually investigating or bringing Martinez claims themselves, there is no reason they or Petitioner could not have requested appointment of independent counsel to pursue such claims during the year-long period between the Supreme Court's decision in Martinez and the court's entry of summary judgment in this case. This is precisely the course of action taken by the petitioner in Juniper. See Fowler v. Joyner, 753 F.3d 446, 465 (4th Cir. 2014) (“Juniper's counsel was qualified, but not independent, and therefore Juniper was in a position to argue that his appointed counsel operated under a conflict of interest entitling him to new counsel under [18 U.S.C.] § 3599.”).

         The Fourth Circuit has been clear that petitioners are only entitled to independent counsel “upon request, ” id. at 463, and therefore Petitioner's argument - that he was unable to request independent counsel previously because he did not already have independent counsel at that time - is unpersuasive. Where a petitioner already has independent counsel, he has no need to request it. Where a petitioner does not have independent counsel, he is entitled to such counsel only if he requests it. See id.; see also id. at 466 (declining to remand for a Martinez investigation because “petitioner's motion for new counsel in light of Martinez[] should have been made in the first instance to the district court”). Because Petitioner failed to request independent counsel to investigate potential Martinez claims prior to the Fourth Circuit's limited mandate in this case, his request is now barred by the mandate rule.[4]

         Petitioner also argues that the Magistrate Judge erred in his alternative finding that - even if the mandate rule did not apply - Petitioner's request for independent counsel is both moot and untimely. As the Magistrate Judge points out, Petitioner has already been appointed independent counsel in the form of Elizabeth Hambourger, who represented Petitioner for 22 months post-remand before belatedly raising the Martinez issue in the instant motion. Petitioner's suggestion that Hambourger or other independent counsel should be now “appointed as ‘Martinez counsel'” (Doc. 112 at 2) evinces a misunderstanding of what so-called “Martinez counsel” constitutes. As the Fourth Circuit noted in Fowler v. Joyner, 753 F.3d 446 (4th Cir. 2014), “there is no magic to the term ‘Martinez counsel,' which does not appear in Juniper.” Id. at 465. Thus, where (as here) a petitioner already has “independent and conflict-free” counsel, there is no need for a “special designation of ‘Martinez counsel.'” Id.

         In response, Petitioner argues that Hambourger needs this sort of special designation because she “had no assurance of being paid” for Martinez work “given the circumstances of her appointment and the current posture of the case, ” and that she was told by “the Fourth Circuit's budgeting attorney . . . that she would not be.” (Doc. 119 at 12; Doc. 114 at 2). As the Magistrate Judge points out, however, nothing in Hambourger's appointment limited the scope of her compensable representation of Petitioner.[5] (Doc. 95.) Furthermore, even if the court accepted Petitioner's argument that Hambourger (or any other attorney) needs special designation as “Martinez counsel” before pursuing any Martinez claims, Petitioner's 22-month delay renders his request untimely. The Martinez Court went to great pains to explain that it was recognizing an “equitable” - not a “constitutional” - exception to procedural default, 566 U.S. at 16, and Petitioner admits that “[i]n considering the availability of equitable relief, ” the court should consider “the amount of time that has passed.” (Doc. 119 at 11.); see also Rhines v. Young, No. 5:00-CV-05020-KES, 2015 WL 4651090, at *8 (D.S.D. Aug. 5, 2015) (denying a petitioner's request for a stay to investigate possible Martinez claims on the alternative ground that he “did not seek leave to conduct the investigation sought by his pending motion for . . . 15 months” after habeas proceedings recommenced).

         Petitioner has not explained why it took him nearly two years after appointment of independent counsel (and over five years since Martinez was decided) to raise a claim for Martinez counsel, and as the Magistrate Judge reasons: If Hambourger became aware of the alleged payment issue early on in her representation, “an unreasonable delay then followed before the filing of the instant Motion.” (Doc. 118 at 16 n.11.) And if she became aware of the alleged payment issue only recently, “an unreasonable delay already had occurred.” (Id.); see also Fowler, 753 F.3d at 463 (finding that the petitioner “had ample opportunity to pursue any Martinez-based arguments” when he had independent counsel post-Martinez for a year, and declining to remand for investigation of Martinez issues because, inter alia, “[n]o explanation for this delay has been offered”).[6]

         Petitioner's only argument in response is that the court should disregard the passage of time because “[t]here is no prejudice here” to Respondent given the pendency of Petitioner's jury misconduct claim. This argument is unconvincing. This case has been pending in this court for over eight years, and the additional investigation and possible inclusion of more claims - as opposed to the court's resolution of ...

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