Atwood v. Stewart ( 2019 )

1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Frank Jarvis Atwood, No. CV-98-116-TUC-JCC 12 Petitioner, DEATH PENALTY CASE 13 vs. ORDER 14 Charles L. Ryan, et al., 15 Respondents. 16 The Court has before it two documents filed by Petitioner entitled “Petitioner’s 17 Renewed Motion to Proceed Pro Se” (Doc. 534) and “Demand for John C. Coughenour 18 Immediate Recusal” (Doc. 535). Petitioner, however, is represented by counsel in this case 19 and has no right to hybrid representation. Counsel has exclusive authority to act on behalf 20 of Petitioner unless and until there is an order allowing counsel to withdraw. Counsel has 21 not so moved. Accordingly, the Court denies Petitioner’s motion for recusal on this ground. 22 See LRCiv. 83.3(c)(2) (“Whenever a party has appeared by an attorney, that party cannot 23 thereafter appear or act in that party’s own behalf in the cause, or take any steps therein, 24 unless an order of substitution shall first have been made by the Court after notice to the 25 attorney of each such party, and to the opposite party.”). 26 Additionally, Rule 5 of the Federal Rules of Civil Procedure states that a “written 27 motion, except one that may be heard ex parte,” must “be served on every party.” Fed. R. 28 1 Civ. P. 5(a)(1)(D). There is no certificate of service indicating that Respondents were 2 served with the motion to recuse. Thus, the Court strikes Petitioner’s recusal motion 3 separately for failure to serve. 4 In Petitioner’s “Renewed Motion to Proceed Pro Se,” he asserts that it is his right to 5 represent himself under the Supreme Court’s holding in Faretta v. California, 422 U.S. 6 806 (1975) (recognizing the right, under the Sixth Amendment, to “make one’s own 7 defense personally”), and requests that he be allowed to represent himself with the 8 assistance of current counsel in the role of advisory or second-chair counsel. 9 The right to federally appointed counsel for capital habeas petitioners during 10 “subsequent stage[s] of available judicial proceedings,” including during state clemency 11 proceedings, however, is based in statute, not the Sixth Amendment. See 18 U.S.C. § 3599; 12 Martel v. Clair, 565 U.S. 648, 661 (2012) (collecting cases regarding the limited 13 applicability of the Sixth Amendment to habeas prisoners); Harbison v. Bell, 556 U.S. 180, 14 192 (2009) (“[h]old[ing] that § 3599 authorizes federally appointed counsel to represent 15 their clients in state clemency proceedings and entitles them to compensation for that 16 representation.”). Section 3599 does not expressly provide a right to self-representation. 17 See id. § 3599(e) (“Unless replaced by similarly qualified counsel upon the attorney’s own 18 motion or upon motion of the defendant, each attorney so appointed shall represent the 19 defendant throughout every subsequent stage of available judicial proceedings . . . .”). 20 Additionally, Petitioner has no constitutional or statutory right to advisory counsel 21 or to co-counsel during habeas proceedings. Cf. United States v. Kienenberger, 13 F.3d 22 1354, 1356 (9th Cir.1994) (upholding a denial of advisory counsel as within the court’s 23 discretion after petitioner was repeatedly dissatisfied with his public defender and insisted 24 upon representing himself); Locks v. Sumner, 703 F.2d 403, 408 (9th Cir.1983) (ruling 25 that the issue of “hybrid representation is best left to the sound discretion of the trial 26 judge”). 27 Nonetheless, this Court has an obligation to inquire into the basis of Petitioner’s 28 1 complaint to determine whether discharging counsel would be in the “interests of justice.” 2 See Martel v. Clair, 565 U.S. 648, 657 (2012); see also United States v. Musa, 220 F.3d 3 1096, 1102 (9th Cir. 2000). 4 Accordingly, 5 IT IS ORDERED DENYING Petitioner’s pro se “Demand for John C. 6 Coughenour Immediate Recusal” (Doc. 535). 7 IT IS FURTHER ORDERED that the Clerk of Court provide a copy of the 8 Documents 534 and 535 to Petitioner’s counsel of record, Natman Schaye, and that 9 Petitioner’s counsel file, ex parte and under seal, a response to Petitioner’s motion for 10 withdrawal of counsel on or before January 8, 2020. Counsel’s response should include all 11 facts relevant to determining whether a change of counsel would serve the interests of 12 justice. 13 IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order 14 to Petitioner Frank Jarvis Atwood, ADOC #062887, Arizona State Prison Complex, 15 Eyman-Browning Unit, P.O. Box 3400, Florence AZ 85132. 16 IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order 17 and Petitioner’s filed documents (Docs. 534, 535) to counsel for Respondents. 18 DATED this 19th day of December 2019. 19 20 21 A 22 23 24 John C. Coughenour 25 UNITED STATES DISTRICT JUDGE 26 27 28