The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 RODNEY BERRYMAN, Case No. 1:95-cv-05309-JLT
12 Petitioner, DEATH PENALTY CASE
13 v. ORDER: (1) GRANTING MOTION TO
WITHDRAW BY PETITIONER’S
14 TRAVIS PENNINGTON, Acting Warden of COUNSEL; and (2) REFERRING CASE TO
California Institution for Men at Chino, THE SELECTION BOARD FOR
15 RECOMMENDATION OF REPLACEMENT
Respondent.1 COUNSEL
16
17
18 I. INTRODUCTION
19 On April 16, 2024, Tim Brosnan and Saor Stetler, appointed as co-counsel pursuant to
20 the Criminal Justice Act2 (hereinafter “CJA”) to represent Petitioner in this 28 U.S.C. § 2254
21 habeas corpus proceeding, filed under seal an ex parte application to withdraw from the case.
22 (Sealed Doc. 508.)
23 On April 22, 2024, the Court filed under seal Petitioner’s pro se submittal responding to
24 counsel’s motion. (Sealed Doc. 510.)
25 The Court, having reviewed the motion, Petitioner’s pro se response to the motion, the
26 1 In light of Petitioner’s recent transfer to the California Institution for Men at Chino, Travis Pennington, Acting
Warden, is substituted as Respondent. Fed. R. Civ. P. 25(d).
27
2 Criminal Justice Act of 1964, as amended, 18 U.S.C. § 3006A.
1 record, and the applicable law finds the matter amenable to decision without a hearing. E.D.
2 Cal. L. R. 230(g).
3 II. BACKGROUND
4 The facts of this case, as reflected in the Court’s docket, are summarized below.
5 In 1988, Petitioner was convicted by a Kern County, California jury of first-degree
6 murder and rape and sentenced to death. The California Supreme Court affirmed Petitioner’s
7 conviction and sentence in 1993 and denied his state petition for writ of habeas corpus. Two
8 years later, Petitioner began habeas corpus proceedings in this Court pursuant to § 2254.
9 In 2010, the Court denied Petitioner’s first amended § 2254 petition for writ of habeas
10 corpus, issued a certificate of appealability as to one of his claims, and entered judgment
11 thereon. Later that same year, the Court appointed current counsel to represent Petitioner in all
12 further proceedings before the Court. In 2020, the Ninth Circuit Court of Appeals affirmed the
13 Court’s denial of Petitioner’s first amended § 2254 petition. The next year, the Supreme Court
14 denied certiorari.
15 On March 4, 2024, the Court denied without prejudice a joint request by moving
16 counsel and the Office of the Federal Defender for the Eastern District of California, to
17 substitute the latter as counsel for Petitioner in this closed proceeding.
18 III. DISCUSSION
19 Counsel’s sealed motion and supporting declaration, and Petitioner’s responsive
20 submittal discuss grounds for withdrawal that relate to and rely upon confidential and
21 privileged attorney-client and work product information. Though Petitioner does not oppose
22 counsel’s withdrawal as his CJA appointed counsel, he does oppose referral to the Eastern
23 District’s Selection Board (hereinafter “Selection Board”) for recommendation of replacement
24 counsel. Petitioner notes that the Office of the Federal Defender is represented on the
25 Selection Board. Based thereon, and for reasons discussed in his submittal, he opposes referral
26 to the Selection Board.
27 Petitioner requests that in lieu of referral to the Selection Board, the Court “allow a
1 pro se habeas corpus petition and attendant request for appointment of counsel that is pending
2 in the state supreme court. The local rules of this district require an attorney who would
3 withdraw and leave his or her client without representation to obtain leave of the Court upon
4 motion noticed to the client and all parties, in conformity with the requirements of the
5 California Rules of Professional Conduct. E.D. Cal. L.R. 182(d). In such a case, the decision
6 to grant or deny counsel’s motion to withdraw is committed to the Court’s discretion upon
7 consideration of the reasons for withdrawal, potential delay in resolution of the case, and
8 potential prejudice to the litigants and the administration of justice. See Copeland v. Challenge
9 Sec. Servs., Inc., Case No. 2:18-CV-01435 TLN CKD, 2020 WL 315997, at *1 (E.D. Cal. Jan.
10 21, 2020). Federal courts often look to applicable state rules in determining whether adequate
11 grounds exist to excuse counsel from further representation. Stewart v. Boeing Co., No. CV
12 12-05621 RSWL, 2013 WL 3168269, at *1 (C.D. Cal. June 19, 2013) (citing Denney v. City of
13 Berkeley, No. C 02–5935 JL, 2004 WL 2648293, at *2-*3 (N.D. Cal. Nov.18, 2004)) (looking
14 to the California Code of Professional Conduct when determining counsel’s motion to
15 withdraw).
16 Here, the Court finds good cause to grant counsel’s unopposed motion to withdraw on
17 the grounds stated by counsel. See CA ST RPC Rule 1.16 (b)(4) (a lawyer may withdraw from
18 representing a client if “the client . . . renders it unreasonably difficult for the lawyer to carry
19 out the representation effectively”); id., Rule 1.16 (b)(6) (a lawyer may withdraw from
20 representing a client if “the client knowingly and freely assents to termination of the
21 representation”); id., Rule 1.16(b)(10) (a lawyer may withdraw from representing a client if
22 “the lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal
23 will find existence of other good cause for withdrawal”). Nothing before the Court suggests
24 that Petitioner will suffer delay or prejudice by virtue of counsel’s withdrawal. Notably,
25 Petitioner has exhausted federal review of his state conviction and death sentence. He does not
26 have an execution date and currently is not at risk for execution due to the Governor’s death
27 penalty moratorium.
1 replacement counsel. Petitioner remains entitled to counsel pursuant to 18 U.S.C. § 3599(e).3
2 The Court finds appointment of counsel to be appropriate in this case. E.D. Cal. L.R. 191(c).
3 In this district, the Selection Board, as appointing authority, makes all recommendations for
4 appointment of counsel in capital § 2254 matters. See E.D. Cal. General Order 677; E.D. Cal.
5 L. R. 191(c). Petitioner has not made any sufficient showing that the Court should deviate
6 from its practice in this case.
7 Petitioner is reminded that, though he may be entitled to appointed counsel during his
8 indigency, he is not entitled to appointed public counsel of his choosing. See United States v.
9 Herrera, No. CR 08-0730 WHA, 2010 WL 5060608, at *2 (N.D. Cal. Dec. 6, 2010) (citing
10 United States v. Gonzalez–Lopez, 548 U.S. 140, 151 (2006)) (“The Supreme Court and our
11 court of appeals have repeatedly held that there is no constitutional right to be represented by a
12 free court-appointed attorney of one’s own choosing.”); see also United States v. Brown, 785
13 F.3d 1337, 1343 (9th Cir. 2015) (citing U.S. v. Rivera-Corona, 618 F.3d 976, 9709 (9th Cir.
14 2010)) (“When the court has appointed an attorney for an indigent defendant, the defendant,
15 like all criminal defendants, has a constitutional right to effective counsel [citation] [emphasis
16 added]. But he does not have the right to the counsel of his choice . . .”). Thus, the Court
17 ORDERS:
18 1. The motion to withdraw by appointed CJA counsel Tim Brosnan and Saor
19 Stetler (Sealed Doc. 508) is GRANTED.
20 2. This matter is REFERRED to the Selection Board for its recommendation of
21 replacement counsel. The Selection Board, through Assistant Federal Defender
22 David Harshaw shall submit the Board’s recommendation of counsel to the
23 Court under seal by emailing it to ApprovedSealed@caed.uscourts.gov,
24 promptly upon issuance.
25
3 18 U.S.C. § 3599(e) provides that “Unless replaced by similarly qualified counsel upon the attorney’s own
motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout
26
every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions
for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all
27 available post-conviction process, together with applications for stays of execution and other appropriate motions
and procedures, and shall also represent the defendant in such competency proceedings and proceedings for
1 3. The Clerk of the Court is directed to SERVE this order upon: (i) counsel for the
2 parties, (ii) the Selection Board, through David Harshaw, Assistant Federal
3 Defender, 801 I Street, Third Floor, Sacramento, CA 95814,
4 david_harshaw @fd.org, and (iii) Connie Garcia, CJA Panel Administrator,
5 Federal Defender’s Office, 2300 Tulare Street, Suite 330, Fresno, CA 93721,
6 Connie_Garcia @fd.org.
7 4. Counsel for Petitioner shall provide him with a copy of this order.
8
9 IT IS SO ORDERED.
10 | Dated: _ April 29, 2024 Cerin | Torr
TED STATES DISTRICT JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28