United States District Court, E.D. Missouri, Eastern Division
CAPITAL HABEAS JUDGE.
MEMORANDUM AND ORDER
STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE.
is a state prisoner who has been sentenced to death following
his 2009 conviction for first degree murder in Carter County,
Missouri. A jury found that petitioner murdered Missouri
highway patrolman, Sergeant Carl DeWayne Graham, Jr., but
left it to the Circuit Court Judge to decide whether to
impose the death sentence. On, November 20, 2018, the Supreme
Court of Missouri affirmed petitioner's conviction and
death sentence. See Shockley v. State, No. SC96633
(Mo.). The motion for rehearing was denied in the Supreme
Court on September 3, 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 motions seeking
appointment of counsel for the filing of a federal habeas
corpus petition on or about September 9, 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 McFarland v. Scott, 512 U.S. 849, 114
S.Ct. 2568, 129 L.Ed.2d 666 (1994), 18 U.S.C. §§
3599(a)(2), and 3006A(a)(2)(B).
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) and (c),
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  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 motions for appointment of counsel ,  are
IS FURTHER ORDERED that after such time as secondary
counsel, the Southern District of Ohio CHU, is approved to
appear in this action pursuant to the out-of-district
protocol, the Southern District of Ohio CHU shall move