Filed: Sep. 23, 2014
Latest Update: Sep. 23, 2014
Summary: ORDER DENYING LETTER REQUEST TO WITHDRAW MICHAEL R. MERZ, Magistrate Judge. This capital habeas corpus case is before the Court on receipt of a letter from Attorney James Schuster on behalf of himself and attorney Mark VanderLaan requesting leave to withdraw as counsel for Petitioner (Doc. No. 135). The Court has ordered the letter docketed because this is not a matter on which the Court is authorized to act ex parte. Mr. Schuster was appointed counsel in this case on August 4, 2005, well bef
Summary: ORDER DENYING LETTER REQUEST TO WITHDRAW MICHAEL R. MERZ, Magistrate Judge. This capital habeas corpus case is before the Court on receipt of a letter from Attorney James Schuster on behalf of himself and attorney Mark VanderLaan requesting leave to withdraw as counsel for Petitioner (Doc. No. 135). The Court has ordered the letter docketed because this is not a matter on which the Court is authorized to act ex parte. Mr. Schuster was appointed counsel in this case on August 4, 2005, well befo..
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ORDER DENYING LETTER REQUEST TO WITHDRAW
MICHAEL R. MERZ, Magistrate Judge.
This capital habeas corpus case is before the Court on receipt of a letter from Attorney James Schuster on behalf of himself and attorney Mark VanderLaan requesting leave to withdraw as counsel for Petitioner (Doc. No. 135). The Court has ordered the letter docketed because this is not a matter on which the Court is authorized to act ex parte.
Mr. Schuster was appointed counsel in this case on August 4, 2005, well before the Petition was filed, on Motion for Appointment of Counsel filed by Mr. Schuster on Petitioner's behalf (Doc. Nos. 3, 4).
On Mr. Schuster's own Motion, Assistant Ohio Public Defenders Lowe and Prillo were removed as counsel on April 22, 2010, and Mr. VanderLaan was substituted as requested by Mr. Schuster. This substitution was made after a Notice of Appeal had been filed (Doc. No. 98) but before a certificate of appealability was issued.
On July 19, 2013, the Sixth Circuit affirmed denial of the writ. Fitzpatrick v. Robinson, 723 F.3d 624 (6th Cir. 2013), cert denied, 134 S.Ct. 1939, 188 L. Ed. 2d 965 (2014). The Sixth Circuit issued its Mandate on September 27, 2013, returning jurisdiction to this Court (Doc. No. 130). On September 10, 2014, the Hamilton County Prosecutor filed his Second Motion to Set Execution Date on the Ohio Supreme Court. State v. Fitzpatrick, Case No. 2002-0506.
Messrs. Schuster and VanderLann were appointed under 21 U.S.C. § 848(q), now recodified at 18 U.S.C. § 3599. That statute provides in pertinent part
(e) Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.
Counsel indicate their understanding that "either prior State Court counsel to Mr. Fitzpatrick or the Ohio Public Defender's Office are the appropriate counsel to Mr. Fitzpatrick for any such motion or proceedings," to wit, the Second Motion to Set Execution Date. Their understanding is belied by the text of the statute which indicates counsel appointed for federal habeas corpus are to continue in the case, until execution if needed.
In Irick v. Bell, 636 F.3d 289 (6th Cir. 2011), the Sixth Circuit held that § 3599 only applies where there is no provision for appointed counsel in state law. Nothing in the letter request indicates whether Ohio law provides for appointment of counsel for proceedings to set an execution date or, more importantly, for clemency proceedings.
Messrs. Schuster and VanderLaan's request to withdraw is DENIED without prejudice to its renewal upon proof that (1) Ohio law provides for appointed counsel for further proceedings in this case and (2) Messrs. Schuster and VanderLaan have moved in the appropriate Ohio court for appointment of counsel for those purposes.
Continuity of representation is plainly very important to a capital petitioner, particularly after denial of certiorari. It is the professional responsibility of present counsel to continue the representation or to move the appropriate court for appointment. That is only this Court if Ohio law does not provide for substitute counsel.
