The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Counsel for petitioner in the above captioned case has requested reconsideration of the undersigned's determination to not pay for attorney's fees incurred in representing petitioner in state court habeas corpus exhaustion proceedings. While it might be much easier, and perhaps fairer, simply to approve the expenditures, the undersigned is not authorized to approve such expenditures.
The Criminal Justice Act (CJA) authorizes the court to pay for attorneys assigned to represent indigents in habeas corpus actions. 18 U.S.C. § 3006A(a)(2)(B). Subsection (c) of that statute further authorizes expenditures in "ancillary matters appropriate to the proceedings [for which representation is authorized]." While grammatically speaking, state exhaustion proceedings might be considered "ancillary" to federal habeas corpus proceedings, for purposes of the CJA, they are not.
First, no one would logically contend that state habeas corpus proceedings initiated prior to the federal habeas action would qualify for federal representation. The result should be no different when a petitioner is tasked with going back to state court to institute proceedings which in most cases should have been instituted prior to the filing of the federal petition. The authority, both for capital and non-capital cases, nearly uniformly finds that state habeas exhaustion proceedings, or follow-up state proceedings of any kind, do not qualify for federal appointment of counsel. King v. Moore, 312 F.3d 1365 (11th Cir. 2002); Sterling v. Scott, 57 F.3d 451 (5th Cir. 1995); In re Lindsey, 875 F.2d 1502-1505-1507 (11th Cir. 1989); Thompson v. Thomas, 2008 WL 2096882 * 5 and footnote 7 (D Haw. 2008); Glassel v. Schriro, 2007 WL 974107 (D. Ariz. 2007); Morris v. Malfi, 2007 WL 1931857 (N.D. Cal. 2007); Wainwright v. Norris, 836 F. Supp. 619, 623 (E.D. Ark. 1993); McKinney v. Paskett, 753 F. Supp. 861 (D. Idaho 1990).*fn1
Moreover, the Administrative Office of U.S. Courts Guidelines do not suggest that representation in omnibus state proceedings are an ancillary matter. The one example given for representation in a pending criminal matter where it may be necessary to attend a civil deposition indicates that the ancillary representation tasks are narrow indeed.
The scope of representation in the ancillary matter should extend only to the part of the ancillary matter that relates to the principal criminal charge and to the correlative objective sought to be achieved in providing the representation (e.g., a CJA defendant in a criminal stock fraud case should be represented by CJA counsel at the defendant's deposition in a parallel civil fraud action for the limited purpose of advising him concerning his Fifth Amendment rights.)
Guidelines for the Administration of the Criminal Justice Act and Related Statutes, § 2.01 F(5).
Even if this court were writing on a blank slate, no representation for state habeas exhaustion proceedings would be authorized as an "ancillary" proceeding. A finding that Congress meant to fund state exhaustion procedures can only be found by establishing that the federal §2254 proceeding referenced in § 3006A includes the exhaustion process in the state court. While § 3006A certainly permits the expenditures of certain funds in § 2254 proceedings, any mention of state proceedings is notably silent.
Subject to the infrequent exceptions, there is no Constitutional provision which would allow the Congress to directly or indirectly regulate the judicial system of the states in terms of promulgating rules of criminal procedure and the like -- such as the appointment of attorneys or regulating certain expenses to be incurred in state court.
The establishing courts of justice, the appointment of Judges, and the making regulations for the administration of justice, within each State, according to its laws, on all subjects not entrusted to the federal government, appear to me to be the peculiar and exclusive province, and duty of the State Legislatures.
Calder v. Bull, 3 U.S. 386, 3 Dall. 388 (1798)
Seealso v. Raygor v.Regents of Univ. Of Minn., 534 U.S. 533, 543-544, 122 S.Ct. 999, 1006 (2002) (Congress must speak in unmistakable terms if it is attempting to impact the traditional norms of no interference with the state judiciaries); Shamrock Oil & Gas Corp. v Sheets, 313 U.S. 100, 108109, 61 S.Ct. 868, 872 (1941) ("The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution."); Anderson v. Gladden, 188 F. Supp. 666, 669, 670 (D.Or. 1960), aff'd. 293 F.2d 463 (9th Cir. 1961) (criminal context).
And, there is no doubt that funding state habeas proceedings would impact the state judicial system. It takes no lengthy recitation of authority to recognize that the writ of habeas corpus is a rare exception to the exclusive sovereignty of the state over its criminal process, and that the federal courts exercise great restraint in reviewing otherwise final state criminal convictions. Rose v. Lundy, 455 U.S.509, 515516, 102 S.Ct. 1198, 1202 (1982). It is also quite apparent that the ability to fund is the ability to control. Such federal control over evidence to be utilized at least initially in the context of exhaustion of state remedies is the antithesis of comity.
Take, for example, the situation where the federal courts have decided to generally pay for counsel fees, experts, and investigative services performed for state exhaustion. Assume that the federal court performs its duty to monitor the expenses requested and fees of counsel. The federal court could decide not to allow a particular expert witness to appear in state court because the federal court thought the witness to be unqualified, duplicative or otherwise unnecessary. The federal court may feel that work performed in the state court was unnecessary, and refuse to fund past and future expenditures in that regard thereby dissuading counsel from further work in the state courts. On the other hand, the federal courts might decide to fund a full fledged juror ...