Box v. Davis ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER BOX, Case No.: 04cv0619- AJB (RBB) 12 Petitioner, ORDER DENYING WITHOUT 13 v. PREJUDICE PETITIONER’S MOTION OF KNUT S. JOHNSON 14 RON DAVIS, Warden of San Quentin TO WITHDRAW AND FOR State Prison, 15 APPOINTMENT OF ELLIS M. Respondent. JOHNSTON, III AS CO-COUNSEL 16 [ECF No. 254] 17 18 On December 10, 2019, Petitioner filed a Motion of Knut S. Johnson to Withdraw 19 as Counsel and Motion to Appoint Ellis M. Johnston, III in Place of Knut S. Johnson. (ECF 20 No. 254.) Petitioner notes that “[o]n November 21, 2019, the President formally nominated 21 Knut Johnson to be a U.S. District Court judge and sent that nomination to the Senate” and 22 that “[a]lthough a mere nomination does not mean that the nominee will be confirmed, 23 there is now a likelihood Mr. Box will lose one of his attorneys soon.” (Id. at 1.) Petitioner 24 states that “Mr. Box is entitled to two qualified attorneys for this capital habeas case,” that 25 “[a]fter confirmation (should that occur) Mr. Box will only have one attorney,” and moves 26 for the withdrawal of Mr. Knut Johnson and appointment of Mr. Ellis Johnston, III to 27 replace him as co-counsel. (Id. at 1-2.) 28 /// 1 18 U.S.C. § 3599(e) provides that: “Unless replaced by similarly qualified counsel 2 ||{upon the attorney’s own motion or upon motion of the defendant, each attorney so 3 ||appointed shall represent the defendant throughout every subsequent stage of available 4 ||judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new 5 || trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, 6 || and all available post-conviction process, together with applications for stays of execution 7 other appropriate motions and procedures, and shall also represent the defendant in 8 ||such competency proceedings and proceedings for executive or other clemency as may be 9 || available to the defendant.” In Martel v. Clair, 565 U.S. 648 (2012), the Supreme Court 10 clarified the standard for evaluating and deciding substitution motions in capital 11 || proceedings, stating: “We hold that courts should employ the same ‘interests of justice’ 12 ||standard that they apply in non-capital cases under a related statute, § 3006A of Title 13 Id. at 652. 14 Upon review, the Court is not persuaded that the interests of justice favor withdrawal 15 || of current co-counsel and appointment of replacement co-counsel at present. For one, the 16 || pending petition has been fully briefed by counsel and is under submission. Moreover, as 17 || Petitioner acknowledges, current co-counsel has not yet been confirmed, and Petitioner 18 only this potential loss of co-counsel at some point in the future, rather than any 19 ||current conflict or dispute, in support of the instant motion. Given the ongoing 20 || proceedings, Petitioner’s motion for withdrawal and substitution [ECF No. 254] is 21 || DENIED without prejudice to renewal pending the outcome of Mr. Johnson’s nomination. 22 ISSO ORDERED. 23 Dated: January 2, 2020 © 24 Hon, Anthony J.Battaglia 25 United States District Judge 26 27 28