United States District Court, Eastern District of Virginia, Norfolk Division
For Plaintiff: Brian J. Samuels, Lisa R. McKeel, United States Attorney's Office, Newport News, VA.
For Defendant: Lawrence H. Woodward, Esquire, Shuttleworth Ruloff Swain Haddad & Morecock, Virginia Beach, VA.
For Defendant: Teresa L. Norris, Esquire, Blume Norris & Frannklin - Best, LLC, Columbia, SC; Seth C. Fä rber, Esquire, Winston & Strawn LLP, New York, NY; Thomas M. Buchanan, Esquire, Winston & Strawn LLP, Washington, DC.
Rebecca Beach Smith, Chief United States District Judge.
This matter comes before the court on the Defendant's " Motion to Appoint Counsel for Proceedings Pursuant to 28 U.S.C. § 2255" (" Motion"), filed October 9, 2014. ECF No. 405. On that same date, the Defendant also filed a Memorandum in Support of the Motion (" Memorandum"). ECF No. 406. The United States filed a Response (" Response"), on October 22, 2014. ECF No. 407. The Defendant filed a Reply (" Reply"), on October 24, 2014. ECF No. 408. For the reasons stated herein, the Motion is GRANTED in part and DENIED in part.
I. Factual and Procedural History
Prior to the Defendant's trial, this court found that he was indigent, and therefore appointed him counsel, Lawrence Hunter Woodward, Jr., and Stephen A. Hudgins. See ECF Nos. 27, 161. A jury convicted the Defendant of Conspiracy to Commit Murder for Hire, Carjacking Resulting in Death, and Murder with a Firearm in Relation to a Crime of Violence, and the Defendant was sentenced to death. Judgment, ECF No. 313. On direct appeal, the Defendant was represented by court-appointed attorneys Teresa L. Norris and Seth C. Farber, and the Court of Appeals for the Fourth Circuit affirmed the Defendant's convictions and sentences in all respects. See United States v. Runyon, 707 F.3d 475 (4th Cir. 2013). The United States Supreme Court denied the Defendant's Petition for a Writ of Certiorari on October 6, 2014. See United States v. Runyon, 190 L.Ed.2d 28, 82 U.S.L.W. 3184 (U.S. Oct. 6, 2014) (No. 13-254).
The judgment against the Defendant became final for purposes of the one-year period of limitations in 28 U.S.C. § 2255(f) on October 6, 2014, the date on which the U.S. Supreme Court denied his Petition for a Writ of Certiorari. See Gonzalez v. Thaler, 132 S.Ct. 641, 653, 181 L.Ed.2d 619 (2012) (" For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the 'conclusion of direct review'--when this Court affirms a conviction on the merits or denies a petition for certiorari."); see also United States v. Segers, 271 F.3d 181, 186 (4th Cir. 2001) (" We accordingly hold that, absent the issuance of a suspension order by the Court or a Justice thereof, as contemplated by Rule 16.3, the judgment of conviction of a prisoner who has petitioned for certiorari becomes final for purposes of the one-year period of limitation in § 2255 ¶ 6(1) when the Supreme Court denies certiorari after a prisoner's direct appeal."). Accordingly, the Defendant's judgment became final on October 6, 2014.
A. Motion for Appointment of Counsel
In the instant Motion, the Defendant argues that as an indigent federal prisoner sentenced to the death penalty, he is entitled to the appointment of counsel pursuant to 18 U.S.C. § 3599. The Defendant is seeking the appointment of two attorneys: his appellate counsel Ms. Norris, as well as Michele J. Brace of the Virginia Capital Representation Resource Center, because together they have " both the time and the relevant expertise to commit to investigating, researching and preparing a comprehensive § 2255 motion within the one year allowed by statute." Mem. at 3. In his Memorandum, the Defendant argues that since his capital § 2255 proceeding is his only opportunity to assert and prove his post-conviction claims,  the court should appoint two attorneys in his case. Id. at 4-5. The Defendant claims that it is common practice in capital § 2255 cases to appoint two counsel for post-conviction work, and further states that CJA Guideline § 6.01(A) encourages judicial officers to " consider appointing at least two counsel" in capital § 2255 proceedings, " [d]ue to the complex, demanding and protracted nature of death penalty proceedings." Id. at 5.
The Defendant requests that the court continue the appointment of Ms. Norris, whom the Fourth Circuit had appointed as counsel to represent the Defendant in his direct appeal, and also that the court appoint Ms. Brace. Mot. at 1. The Defendant notes that his second appellate counsel, Mr. Farber, is not requesting continued appointment, although he is prepared to provide pro bono assistance should appointed counsel and the Defendant so desire. Mem. at 1 n.1.
Ms. Norris is licensed by the State of South Carolina, and she has served as the Defendant's appellate counsel since January 2010. Id. at 7. Ms. Brace is a senior staff attorney at the Virginia Capital Representation Resource Center, is licensed to practice law in the Commonwealth of Virginia, and is admitted to practice in the Eastern District of Virginia. Id. at 6. Ms. Brace " has represented Virginia prisoners at all stages of state and federal habeas corpus proceedings, " and has previously been appointed counsel in death penalty cases in the Eastern District of Virginia. Id. The Defendant asserts that Ms. Brace is suitable counsel for his post-conviction proceedings because of her " expertise in and familiarity with capital habeas litigation, " which in turn " will save time and resources and provide the necessary assistance. .. in this unique field." Id. at 6-7.
B. The United States' Response
In its Response, the United States asserts that § 3599(a)(2) entitles the Defendant to at least one attorney, and that the decision to appoint more than one attorney lies with the discretion of this court. Resp. at 3. The United States contends that the Defendant is not entitled to a new set of attorneys at each stage of the proceedings, and that § 3599(e) reflects " a clear preference. .. for continuity of appointed counsel for indigent defendants." Id. The United States further advises that when ruling upon the Defendant's request for substitution under § 3599, the court should apply the " interests of justice" standard as stated in Martel v. Clair, 132 S.Ct. 1276, 1287, 182 L.Ed.2d 135 (2012). Resp. at 4. Importantly, the United States does not contest that Ms. Brace and Ms. Norris each meet the requirements for ...