United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
is a state prisoner who has been sentenced to death following
his 2001 convictions for two counts of first degree murder in
the Cape Girardeau County, Missouri. On, November 20, 2018,
the Supreme Court of Missouri affirmed petitioner's
convictions and death sentence. See Anderson v.
State, No. SC96548 (Mo.). The motion for rehearing was
denied in the Supreme Court on January 29, 2019. Id.
Petitioner was represented by William J. Swift during his
post-conviction proceedings in the Supreme Court of Missouri.
Office of the Federal Public Defender for the Western
District of Missouri's Capital Habeas Unit ("Western
District CHU") filed the instant motion seeking
appointment of counsel for the filing of a federal habeas
corpus petition on or about January 25, 2019.
wishes to file a counseled petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his state convictions and sentence.
Consequently, petitioner is seeking appointment of counsel
pursuant to McFarlandv. Scott, 512 U.S. 849, 114
S.Ct. 2568, 129 L.Ed.2d 666 (1994) and 18 U.S.C. §
3599 provides, in relevant part,
In any post-conviction proceeding under section 2254 or 2255
of title 28, United States Code, seeking to vacate or set
aside a death sentence, any defendant who is or becomes
financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary services
shall be entitled to the appointment of one or more attorneys
and the furnishing of such other services in accordance with
subsections (b) through (f) [ (relating to conditions of
18 U.S.C. § 3599(a)(2).
McFarland, the United States Supreme Court construed
this statutory right to counsel to include the right to legal
counsel prior to the filing of a formal federal habeas corpus
petition and held that "a 'post-conviction
proceeding' within the meaning of [§ 3599(a)(2) ] is
commenced by the filing of a capital defendant's motion
requesting the appointment of counsel for his federal habeas
corpus proceeding." McFarland, 512 U.S. at
856-57. Accordingly, once a capital defendant files a motion
requesting appointment of counsel, as petitioner has done in
this case, he is granted "a mandatory right to qualified
legal counsel." Id. at 854. This right to
counsel "necessarily includes a right for that counsel
meaningfully to research and present a defendant's habeas
claims." Id. at 858. The Supreme Court
cautioned that "[w]here this opportunity is not
afforded,' [a]pproving the execution of a defendant
before his [petition] is decided on the merits would clearly
be improper."' Id. (quoting Barefoot v.
Estelle, 463 U.S. 880, 889, 103 S.Ct. 3383, 77 L.Ed.2d
because the Court concludes that petitioner is indigent, and
the Western District CHU has demonstrated that it possesses
the special expertise in capital jurisprudence and thereby
qualifies for appointment as capital habeas counsel under the
standards set forth in 18 U.S.C. § 3599(a)(2), the Court
will grant petitioner's motion for appointment of the
Western District CHU as counsel.
a scheduling order will accompany this Memorandum and Order
so that petitioner's counsel may utilize their time as
counsel to properly investigate, research, prepare, and file
his federal petition for writ of habeas corpus.
IT IS HEREBY ORDERED that petitioner's
motion to proceed in forma pauperis [Doc. #1] is
IS FURTHER ORDERED that the Federal Public
Defender's Office for the Western District of Missouri
Capital Habeas Unit is APPOINTED to
represent petitioner in this action, and as such,
counsel's motion for appointment of counsel [Doc. #2 and
#3] are GRANTED.
IS FURTHER ORDERED that after such time as secondary
counsel, the Eastern District of Pennsylvania CHU, are
approved to appear in this action pursuant to the
out-of-district protocol, the Pennsylvania CHU shall move
separately for appointment of counsel on behalf of
IS FURTHER ORDERED that simultaneously with this
Memorandum and Order, the Court shall issue a Case ...