and Submitted March 12, 2019 San Francisco, California
from the United States District Court for the Southern
District of California Thomas J. Whelan, District Judge,
Presiding D.C. No. 3:00-CV-02118-W-AJB
P. Niemy (argued), Salem, Massachusetts, for
H. Urbanski (argued) and Annie Featherman Fraser, Deputy
Attorneys General; Holly D. Wilkens, Supervising Deputy
Attorney General; Julie L. Garland, Senior Assistant Attorney
General; Gerald A. Engler, Chief Assistant Attorney General;
Office of the Attorney General, San Diego, California; for
Before: William A. Fletcher, Paul J. Watford, and Andrew D.
Hurwitz, Circuit Judges.
panel reversed the district court's denial of a motion,
brought by a California death-row prisoner seeking state
clemency, for the appointment of additional counsel from the
Federal Public Defender Services for the District of Arizona,
panel held that the availability of state-appointed clemency
counsel does not prevent the district court from appointing
additional clemency counsel under 18 U.S.C. § 3599 for
purposes of state clemency proceedings. The panel remanded
for the district court to determine whether appointment of
additional counsel to represent petitioner is appropriate
under the statute.
Judge Watford wrote that the majority's apparent reading
of 18 U.S.C. § 3599(a)(2), which requires that an inmate
show that he is "financially unable to obtain adequate
representation," as requiring petitioner to show only
that he is indigent, cannot be squared with Harbison v.
Bell, 556 U.S. 180 (2009), where the Supreme Court
declared that an inmate's state-furnished representation
may render him ineligible for appointment of counsel under
§ 3599, notwithstanding his indigency.
FLETCHER, CIRCUIT JUDGE
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.
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
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, 132 S.Ct.
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
(2002), and Ford v. Wainwright, 477 U.S. 399 (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 ...