(DP) Contreras v. Davis ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JORGE CONTRERAS, Case No. 1:19-cv-01523-AWI-SAB 11 Petitioner, DEATH PENALTY CASE 12 v. ORDER REFERRING CASE TO THE SELECTION BOARD DUE TO THE 13 RONALD DAVIS, Warden of San Quentin WITHDRAWAL OF CO-COUNSEL State Prison, KENNETH MURRAY 14 Respondent.1 15 16 On April 22, 2022, Kenneth Murray filed notice of his withdrawal as co-counsel 17 representing Petitioner Jorge Contreras in this proceeding. (ECF No. 100.) Mr. Murray points to 18 his medical and emotional conditions that prevent him from effectively representing Petitioner. 19 (ECF No. 100-1.) 20 The record reflects that on December 6, 2019, the Court appointed Mr. Murray and Brian 21 Pomerantz to represent Petitioner as co-counsel for all purposes in this proceeding, pursuant to 22 18 U.S.C. § 3599. (ECF No. 12); see also E.D. Cal. L.R. 191(c). 23 The local rules of this district require an attorney who would withdraw and leave his or 24 her client without representation to obtain leave of the court upon motion noticed to the client 25 and all parties, in conformity with the requirements of the California Rules of Professional 26 Conduct. E.D. Cal. L.R. 182(d). In such a case, the decision to grant or deny counsel's motion 27 1 Pursuant to Federal Rules of Civil Procedure, Rule 25(d), Ron Broomfield, Warden of San Quentin State Prison, 1 to withdraw is committed to the court’s discretion upon consideration of the reasons for 2 withdrawal, potential delay in resolution of the case, and potential prejudice to the litigants and 3 the administration of justice. See Copeland v. Challenge Sec. Servs., Inc., No. 4 218CV01435TLNCKD, 2020 WL 315997, at *1 (E.D. Cal. Jan. 21, 2020). 5 Also, federal courts often look to applicable state rules in determining whether adequate 6 grounds exist to excuse counsel from further representation. Stewart v. Boeing Co., No. CV 12- 7 05621 RSWL, 2013 WL 3168269, at *1 (C.D. Cal. June 19, 2013) (citing Denney v. City of 8 Berkeley, No. C 02–5935 JL, 2004 WL 2648293 at *2–*3 (N.D. Cal. Nov.18, 2004) (looking to 9 the California Code of Professional Conduct when determining counsel's motion to withdraw); 10 see also Cal. Prof. Conduct, Rule 1.16(b)(8) (permissive withdrawal allowed where counsel’s 11 mental or physical condition renders it difficult for the member to carry out the employment 12 effectively); Cal. Prof. Conduct, Rule 1.16(d) (counsel may not withdraw unless he “has taken 13 reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client). 14 Here, the Court observes that co-counsel Pomerantz continues to represent Petitioner for 15 all purposes in this case, and that withdrawing co-counsel Murray will assist with transition to 16 replacement co-counsel. (ECF Nos. 100, 100-1.) Furthermore, to the extent the parties’ joint 17 stipulation, filed concurrently with co-counsel’s notice of withdrawal, suggests Mr. Murray’s 18 departure may necessitate further equitable tolling of the petition filing deadline, such matters as 19 may properly be before the Court will be addressed separately, in due course. (ECF No. 101.) 20 Accordingly, 21 1. The Court, consistent with its practice in capital habeas cases, refers this matter to 22 the Selection Board for the Eastern District of California for their 23 recommendation of suitable replacement co-counsel. The Selection Board shall 24 consider the availability of the Sacramento Office of the Federal Defender as 25 replacement co-counsel. Assistant Federal Defender David Harshaw shall submit 26 the Board’s recommendation of counsel to the Court under seal by emailing it to 27 ApprovedSealed@caed.uscourts.gov, promptly upon issuance. 1 parties, and (ii) and David Harshaw, Assistant Federal Defender, 801 I Street, 2 Third Floor, Sacramento, CA 95814, (Email) david_harshaw @fd.org. 3 3. Co-counsel for Petitioner, Mr. Pomerantz, shall provide him with a copy of this 4 order. 5 6 IT IS SO ORDERED. DAM Le 7 | Dated: _May 2, 2022 _ ef UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28