MEMORANDUM

STEPHEN R. CLARK, District Judge.

To ensure timeliness in this case, the Court by docket text order (Doc. 14) granted the motion for appointment of counsel of the Capital Habeas Unit of the Office of the Federal Public Defender for the Southern District of Ohio Capital Habeas Unit ("Southern District CHU") (Doc. 13) in this capital habeas matter.1 This Memorandum explains the Court's reasons for granting the motion.

Petitioner is a state prisoner who has been sentenced to death following his 2009 conviction for first degree murder in Carter County, Missouri. A jury found that petitioner murdered Missouri highway patrolman, Sergeant Carl DeWayne Graham, Jr., but left it to the Circuit Court Judge to decide whether to impose the death sentence.2 On, November 20, 2018, the Supreme Court of Missouri affirmed petitioner's conviction and death sentence. See Shockley v. State, No. SC96633 (Mo.). The motion for rehearing was denied in the Supreme Court on September 3, 2019. Id. Petitioner was represented by William J. Swift during his post-conviction proceedings in the Supreme Court of Missouri.

Petitioner, as an indigent litigant, is entitled to seek appointment of counsel pursuant to McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) and 18 U.S.C. § 3599(a)(2), in order to challenge the constitutionality of his state convictions and sentence. Section 3599 provides, in relevant part,

18 U.S.C. § 3599(a)(2).3

In McFarland, the United States Supreme Court construed this statutory right to counsel to include the right to legal counsel prior to the filing of a formal federal habeas corpus petition and held that "a `post-conviction proceeding' within the meaning of [§ 3599(a)(2)] is commenced by the filing of a capital defendant's motion requesting the appointment of counsel for his federal habeas corpus proceeding." McFarland, 512 U.S. at 856-57. Accordingly, once a capital defendant files a motion requesting appointment of counsel, as petitioner has done in this case, he is granted "a mandatory right to qualified legal counsel." Id. at 854. This right to counsel "necessarily includes a right for that counsel meaningfully to research and present a defendant's habeas claims." Id. at 858. The Supreme Court cautioned that "[w]here this opportunity is not afforded, `[a]pproving the execution of a defendant before his [petition] is decided on the merits would clearly be improper.'" Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 889, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

The Court has previously concluded that petitioner is indigent and entitled to learned capital counsel. Moreover, after reviewing the qualifications of proposed counsel, the Court finds that both the Southern District CHU and the Office of the Federal Public Defender for the Western District of Missouri's Capital Habeas Unit ("Western District CHU") have demonstrated the special expertise in capital jurisprudence that qualifies both entities for appointment as capital habeas counsel under the standards set forth in 18 U.S.C. § 3599(a)(2). The Western District CHU was appointed to represent petitioner in this matter on September 19, 2019. At this time the Court will grant petitioner's motion for appointment of the Southern District CHU as co-counsel in this action.

A Scheduling Order was entered in this Capital Habeas on September 19, 2019. An extension of time to file the petition in this matter was granted on November 1, 2019. The petition is due to this Court no later than June 3, 2020.

Accordingly,

For the above stated reasons, the Court appointed the Office of the Federal Public Defender for the Southern District of Ohio Capital Habeas Unit to represent petitioner in this action, and as such, counsel's motion for appointment of counsel.