Metropolitan News-Enterprise


Monday, July 8, 2019


Page 1


Ninth Circuit:

District Court May Appoint Counsel for State Proceeding

Majority Authorizes Appointment of Lawyer in Death-Row Inmate’s Bid for Clemency;

Dissenter Says Prisoner Lacks Need in Light of State-Appointed Counsel


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals held, in a 2-1 decision, that a district court has the prerogative of appointing free counsel to a death-row inmate seeking clemency even though the State of California provides such counsel.

Judge William A. Fletcher wrote the majority opinion, in which Judge Andrew D. Hurwitz joined. Judge Paul J. Watford dissented, arguing that state-appointed counsel suffices.

The prisoner, Richard Samayoa, was convicted in 1988 of the slaying, during a 1985 burglary, of a 33-year-old woman and her two-year-old daughter. He was sentenced to death on June 28, 1988.

He had prior convictions for burglary, rape and attempted rape.

2001 Appointment

Fletcher noted in Wednesday’s opinion that the District Court for the Southern District of California in 2001 appointed counsel for Samayoa to pursue federal habeas corpus relief. The judge pointed to 18 U.S.C. §3599(e) which provides, with emphasis he added:

“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,...and shall also represent the defendant in such competency proceedings and for executive or other clemency as may be available to the defendant.”

 In the 2009 case of Harbison v. Bell, Fletcher said, the U.S. Supreme Court held that §3599(e) extends to representation in state clemency proceedings.

Then-Justice John Paul Stevens (now retired) reasoned that “the statutory language indicates that appointed counsel’s authorized representation includes such proceedings.”

State Services Irrelevant

Fletcher wrote:

“The availability of state appointment of clemency counsel is irrelevant to federally appointed counsel’s ongoing representation of a death-row client in state clemency proceedings. Harbison instructs that the ‘straightforward’ reading of § 3599(e) controls….That section says that, unless replaced, federally appointed habeas counsel ‘shall represent the such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.’…(emphasis added). This language does not invite a blanket exception if the state also provides for clemency counsel.”

He labeled “unpersuasive” contrary reasoning by the Sixth Circuit in a 2011 opinion.

Same Lawyer

In 2001, sole practitioner Glen Niemy was appointed Samayoa’s counsel and, he said,. remains his counsel.

Harbison’s discussion of why Congress intended § 3599(e) to include stale clemency proceedings supports the plain reading of the text,” Fletcher said. “One of Harbison’s primary rationales was that habeas counsel is uniquely positioned to advocate for clients in subsequent proceedings.”

He continued:

Harbison emphasized ‘continuity of counsel,’ noting that ‘the work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application.’…Harbison was thus concerned with not only whether a petitioner was represented in clemency proceedings, but also by whom.”

Niemy, who now resides in Maryland, confirmed Wednesday that he continues to represent Samayoa. He remarked, however, that “with the governor’s moratorium, things are on hold for now.”

Gov. Gavin Newsom on March 12 declared that there will be no executions in California during his term of office.

Watford’s Opinion

Watford said in his dissent that §3599(e) authorizes appointment of legal counsel in state clemency proceedings “but only if the inmate can show that he is ‘financially unable to obtain adequate representation’ on his own.” He commented:

“An inmate cannot make that showing if the State itself, free of charge, has appointed counsel capable of providing adequate representation.”

The case is Samayoa v. Davis, 18-56047.


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