Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the court is the Motion for Reconsideration Re: Appointment of Counsel Under the Criminal Justice Act (doc. # 45), in which Petitioner seeks appointment of attorney Gale Natale, from federal Criminal Justice Act funds, to represent Petitioner in state court proceedings assertedly to exhaust state court remedies preliminary to his federal habeas proceedings in this court. Petitioner argues that Natale's appointment is authorized by 18 U.S.C. § 3006A(c), which provides that representation by appointed counsel shall extend to "ancillary matters appropriate to the proceedings." The argument is rejected. Section 3006A(c) does not authorize appointment of counsel from federal funds for the prosecution of state court post-conviction relief proceedings, which are always a precondition to federal relief under 18 U.S.C. § 2254. In re Lindsay, 875 F.2d 1502, 1507-08 (11th Cir. 1989); see also United States v. Reddick, 53 F.3d 462, 462 (2d Cir. 1995) (explaining that "ancillary matters" under section 3006A(c) refers to those involved "in defending the principal
Case 2:03-cv-02172-NVW Document 46 Filed 06/04/2007 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Petitioner, ) ) vs. ) ) Dora Schriro; Arizona Attorney General, ) ) ) Respondents. ) ) Curtis Graylin Simmons,

CV 03-02172-PHX-NVW ORDER

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criminal charge and not post-conviction proceedings") (internal quotation marks omitted); United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995) (holding that even federal post-conviction proceedings are not "ancillary matters" under section 3006A(c)). Moreover, 18 U.S.C. § 3006A(b)(2) does not by its terms authorize appointment of counsel for services beyond what section 3006A(c) authorizes. On Petitioner's reading of the statute, federally paid counsel is authorized for state court proceedings in every premature federal habeas case. It is not the practice of this court to appoint counsel from federal funds for such purposes, and the court is unaware of any such appointments. Independent of the lack of statutory authorization for this court to expend federal Criminal Justice Act funds for this purpose, Petitioner has given no response to one of the additional reasons for the original denial of such appointment: "Petitioner explicitly waived his right to assistance of appointed counsel when he originally filed his first PCR in the Superior Court." (Doc. # 35, p. 2.) This court also noted, "The Superior Court may decide to appoint [Ms. Natale] as counsel for further proceedings in that court." Id. Petitioner asserts that he sought such relief and the Superior Court "ignored the request" and "it is just as likely that the court will not address a refiled request for appointment of counsel." (Doc. # 45, p. 2.) This is no excuse for not seeking appointment or not reminding a court that a pending motion has been overlooked. This court cannot assume that the Superior Court lacks the will and the ability to make a reasoned decision whether to appoint counsel in the proceedings before it. IT IS THEREFORE ORDERED that the Motion for Reconsideration Re: Appointment of Counsel Under the Criminal Justice Act (doc. # 45) is denied. DATED this 4th day of June 2007.

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