(HC) (DP) Berryman v. Wong ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RODNEY BERRYMAN, Case No. 1:95-cv-05309-AWI 12 Petitioner, DEATH PENALTY CASE 13 v. ORDER ON EX PARTE MOTION TO SUBSTITUTE COUNSEL 14 CHANCE ANDES, Acting Warden of San Quentin Rehabilitation Center, (Doc. 502) 15 Respondent.1 16 17 18 19 20 Before the Court is a motion filed jointly by Petitioner’s current Criminal Justice Act2 21 counsel Saor Stetler and Tim Brosnan, and Petitioner’s proposed counsel the Office of the 22 Federal Defender for the Eastern District of California, to substitute counsel for Petitioner in 23 this closed 28 U.S.C. § 2254 proceeding. 24 The Court, having reviewed the ex parte motion, the record, and the applicable law 25 finds the matter amenable to decision without a hearing. (E.D. Cal. Local Rule 230(g).) 26 1 Chance Andes, Acting Warden of San Quentin Rehabilitation Center, is substituted as Respondent in place of his predecessor wardens. Fed. R. Civ. P. 25(d). 27 2 Criminal Justice Act of 1964, as amended, 18 U.S.C. § 3006A. 1 BACKGROUND 2 The facts of this case as reflected in the Court’s docket are summarized below. 3 In 1988, Petitioner was convicted by a Kern County, California jury of first degree 4 murder and rape, and sentenced to death. 5 In 1993, the California Supreme Court affirmed Petitioner’s conviction and sentence, 6 and denied his state petition for writ of habeas corpus. 7 In 1995, Petitioner began habeas corpus proceedings in this Court pursuant to 28 U.S.C. 8 § 2254. 9 In 2010, the Court denied Petitioner’s first amended § 2254 petition for writ of habeas 10 corpus, issued a certificate of appealability as to one of his claims, and entered judgment 11 thereon. Later that same year, the Court appointed current counsel to represent Petitioner in 12 all further proceedings before the Court. 13 In 2020, the Ninth Circuit Court of Appeals affirmed the Court’s denial of the first 14 amended § 2254 petition. In 2021, the Supreme Court denied certiorari. 15 DISCUSSION 16 Current and proposed counsel jointly seek permission from the Court to substitute 17 counsel in the case. In support of the motion, Supervising Assistant Federal Defender David 18 Harshaw represents that Petitioner has communicated with the Office of the Federal Defender 19 regarding his desire for new federal counsel. Mr. Harshaw further represents that Petitioner is 20 amenable to substituting the Federal Defender’s Office to represent him in further proceedings 21 under 18 U.S.C. § 3599(e).3 Current counsel and proposed counsel are agreeable to the 22 proposed substitution. 23 ///// 24 3 18 U.S.C. § 3599(e) provides that “Unless replaced by similarly qualified counsel upon the attorney's own 25 motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions 26 for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions 27 and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” ] The Local Rules of the Eastern District of California outline the procedure for the 2 | appearance and substitution of counsel. Local Rule 182 explains that if an attorney does not 3 | appear in the initial filing, the attorney may appear by “by filing and serving on all parties a 4 | substitution of attorneys as provided in (g).” Local Rule 182(a)(2). Subsection (g) of Local 5 | Rule 182 provides that: 6 An attorney who has appeared in an action may substitute another attorney and thereby withdraw from the action by 7 submitting a substitution of attorneys that shall set forth the full name and address of the new individual attorney and shall be 8 signed by the withdrawing attorney, the new attorney, and the client. All substitutions of attorneys shall require the approval of 9 the Court.... 10 The instant motion is not a substitution of counsel complaint with Local Rule 182(g). 11 | See e.g., Magaddem v. California, No. 2:23-CV-00687 DAD AC, 2023 WL 4827686, at *1 12 | (E.D. Cal. July 27, 2023) (denying purported substitution filing not compliant with Local Rule 13 | 182(g).) Particularly, Petitioner has not signed a substitution of counsel. 14 The Court observes that absent substitution of counsel, any request to withdraw by 15 | current counsel, if granted, would require referral to the Selection Board for the Eastern 16 | District of California for recommendation of suitable replacement counsel. See E.D. Cal. 17 | General Order 671; Local Rule 191(c). 18 ACCORDINGLY, the ex parte motion to substitute counsel (Doc. 502) is DENIED 19 | without prejudice. The Clerk of the Court is directed to SERVE this order upon: (i) counsel for 20 | Petitioner, and (11) David Harshaw, Assistant Federal Defender, 801 I Street, Third Floor, 21 | Sacramento, CA 95814, david_harshaw@fd.org. Counsel for Petitioner shall PROVIDE him 22 | with a copy of this order. 23 | DATED: March 1, 2024. 24 25 CHIEF ED STATES DISTRICT JUDGE 26 27 28