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Samayoa v. Davis

United States Court of Appeals, Ninth Circuit

July 3, 2019

Richard Gonzales Samayoa, Petitioner-Appellant,
v.
Ron Davis, Warden of the California State Prison at San Quentin, Respondent-Appellee.

          Argued and Submitted March 12, 2019 San Francisco, California

          Appeal 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

          Glen P. Niemy (argued), Salem, Massachusetts, for Petitioner-Appellant.

          Robin 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 Respondent-Appellee.

          Before: William A. Fletcher, Paul J. Watford, and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY[*]

         Appointment of Counsel

         The 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, and remanded.

         The 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.

         Dissenting, 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.

         OPINION

          W. FLETCHER, CIRCUIT JUDGE

         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.

         I. Factual Background

         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, 132 S.Ct. 1564 (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 (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 ...


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