December 20, 2013
UNITED STATES OP AMERICA,
DAVID ANTHONY RUNYON, Defendant.
REBECCA BEACH SMITH, Chief District Judge.
This matter comes before the court on the Motion for Appointment of Counsel for Proceedings Pursuant to 28 U.S.C. § 2255 ("Motion") and supporting Memorandum of Law ("Memorandum"), both filed on November 14, 2013, by J. T. Stanton, Esquire. For the reasons discussed below, the Motion is DENIED, as is the Application to Qualify as a Foreign Attorney Under Local Civil Rule 83.1(D) and Local Criminal Rule 57.4, filed on November 14, 2013, with the Motion.
The Defendant, David Anthony Runyon, pursuant to the jury's verdict and recommendation under the Federal Death Penalty Act, 18 U.S.C. § 3594, was sentenced to death on December 4, 2009. The United States Court of Appeals for the Fourth Circuit affirmed the Defendant's conviction and sentence on direct appeal on February 25, 2013. United States v. Runyon , 707 F.3d 475 (4th Cir. 2013). Rehearing en banc was denied. United States v. Runyon, No. 09-11 (4th Cir. Mar. 25, 2013) (Order denying petition for rehearing en banc). The Defendant then filed a petition for a writ of certiorari with the Supreme Court of the United States on August 21, 2013, which is currently pending. No response to the petition has been filed and one is not even due until January 22, 2013.
Ms. Stanton filed the instant Motion on November 14, 2013. In the Motion, Ms. Stanton asks the court to appoint two attorneys to represent the Defendant in pursuing post-conviction relief, including the preparation of a motion pursuant to 28 U.S.C. § 2255. Specifically, she asks the court to appoint her, a private attorney admitted to the bar of this court, and a federal public defender from the District of Maryland. Moreover, she asks for appointment of counsel for collateral proceedings even prior to the Supreme Court's decision on the Defendant's petition for a writ of certiorari.
In her Memorandum, Ms. Stanton cites no authority for the proposition that the court is required to appoint post-conviction counsel, prior to the Supreme Court's decision on the Defendant's petition for a writ of certiorari. Additionally, it is unclear from her Memorandum why the court should appoint Ms. Stanton,  when there are numerous qualified attorneys in this district, as well as groups of attorneys specializing in capital post-conviction proceedings, such as the Virginia Capital Representation Resource Center, located within this state. It is also unclear at this premature stage whether the Defendant needs two attorneys to represent him in post-conviction proceedings. By statute, the Defendant is entitled to the appointment of only one qualified attorney to assist him in preparing a habeas corpus petition pursuant to 28 U.S.C. § 2255. See 18 U.S.C. § 3599(a)(2).
For the foregoing reasons, the court finds that appointment of counsel for collateral proceedings in this case, before the direct appellate review process is complete, is premature. Such appointment may not even be appropriate, depending upon the outcome of the direct appellate review process, thereby creating unnecessary expenses and waste of legal resources. The Defendant's appellate counsel can petition on behalf of the Defendant for appointment of habeas corpus counsel, if warranted, following the conclusion of the direct appellate review proceedings. Also, at that time, the court can more appropriately determine whether to appoint one or two attorneys and which qualified counsel to appoint. In summary, the Motion is premature, leaving the court no meaningful way to exercise its discretion at the appropriate time as to how many and who to appoint as qualified counsel for collateral proceedings, if warranted.
Accordingly, Ms. Stanton's Motion is DENIED, as is the pro hac vice application for a federal public defender from the District of Maryland to be appointed as counsel at this time. These denials are without prejudice to the Defendant's right and ability, or that of his appellate counsel, to petition the court for habeas corpus counsel, if needed at the appropriate time.
The Clerk is DIRECTED to forward a copy of this Memorandum Order to the Defendant, appellate counsel of record for the Defendant, the United States Attorney for the Eastern District of Virginia, Ms. Stanton, and the Federal Public Defender for the District of Maryland.
IT IS SO ORDERED.