Soon after defendant Francisco Acosta Astorga completed his sentence of imprisonment, he retained attorneys James Smith and Clyde Blackmon to assist him in the collateral attack of his conviction. (See Acosta Decl. (Docket No. 186) 2:13-16.) Presently, defendant indicates that he can no longer afford these attorneys' services and requests that the court appoint Mr. Smith to represent him at public expense pursuant to the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A.
Defendant previously submitted such a request on March 2, 2009, in the form of a letter from his counsel. The court held a hearing on the matter on March 16, 2009, in which defendant's counsel and counsel for the government appeared. After considering the parties' arguments, the court denied defendant's request; at that time, the evidentiary hearing on defendant's claims had been vacated, and the court found that the "interests of justice" did not require appointment of counsel.
Because the evidentiary hearing on defendant's claims has subsequently been reinstated (see Docket No. 199), defendant is now entitled to appointed counsel pursuant to Rule 8(c) of the Rules Governing Section 2255 Cases in the United States District Courts, which provides, "If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A." See, e.g., United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995) ("All of the circuits that have discussed the issue agree that [Rule 8(c)] makes the appointment of counsel mandatory when evidentiary hearings are required.").
Rule 8(c) requires the court to appoint counsel only when the moving party is not already represented by counsel. Here, defendant is represented by two attorneys who have not sought to withdraw as counsel of record. In their moving papers, counsel indicate that Mr. Smith will provide most of the required legal services in continuing to prosecute defendant's § 2255 petition and that Mr. Blackmon will continue to provide his services on a pro bono basis. They seek an order allowing for Mr. Smith to be paid for his services from CJA funds.
The purpose of Rule 8(c) is to assure that an indigent defendant who is otherwise represented has legal representation at any evidentiary hearing under § 2255. It is not to assure that attorneys who have already contractually undertaken to represent a defendant are adequately compensated at government expense. See generally Rauter v. United States, 871 F.2d 693, 697 (7th Cir. 1989); Rules Governing Section 2255 Cases in the United States District Courts R. 8(c) advisory committee's notes.
This court's CJA Plan, available at http://www.caed. uscourts.gov/caed/DOCUMENTS/GeneralOrders/323.pdf, sets forth the procedures followed in this district for appointment of counsel. Appendix I contains the plan for the composition, administration, and management of the panel of private attorneys. To be eligible to serve on the panel, attorneys must demonstrate experience in, as well as knowledge of, the applicable rules, and preference is to be given to attorneys with experience in the field of criminal law. The Plan provides a procedure for selecting panel members, periodic training, and review of members.
Paragraph B(3) of Appendix I states that, "When a judge finds special circumstances to exist, an attorney other than a CJA panel attorney may be appointed to represent a defendant on an ad hoc basis, provided the attorney has a level of experience and knowledge that otherwise would qualify the attorney for membership on the CJA panel." The court does not find such special circumstances here. There is no showing that the court needs to appoint Mr. Smith under the CJA in order for defendant to continue to be represented. Mr. Smith voluntarily undertook to represent a defendant who has apparently now run out of money to continue paying him. Mr. Blackmon has indicated that he will continue to represent defendant pro bono in this matter, and there is no suggestion that Mr. Smith would not do the same.
Further, the court is not satisfied from the materials presented that Mr. Smith would qualify for membership on the CJA panel. His declaration states that he specializes in the practice of "immigration law and post conviction relief." However, all of the experience described in his declaration appears to be in the field of immigration law and deportation proceedings. It does not appear that his experience in the field of criminal law is such as would ordinarily qualify him for membership on the panel.
Under the circumstances, the motion to appoint Mr. Smith to represent defendant so that he can be compensated by the government under the CJA is DENIED. If both Mr. Smith and Mr. Blackman wish to withdraw from representation of defendant, the court will consider appointment of counsel pursuant to the CJA Plan, supra.
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