The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TIMMY EUVONNE GROOMS, )
)
Petitioner, )
)
v. ) 1:19CV396
)
EDWARD THOMAS, Warden, )
Central Prison, Raleigh, )
North Carolina, )
)
Respondent. )
ORDER
This matter is before the court for review of the Order and
Recommendation filed by the Magistrate Judge on October 10,
2019, in accordance with 28 U.S.C. § 636(b). (Doc. 8.) In the
Recommendation, the Magistrate Judge recommended that the court
dismiss the Petition, (Doc. 2), without prejudice, and ordered
that Petitioner’s Application to Proceed IFP, (Doc. 1), Motion
to Hold Petition for Writ of Habeas Corpus in Abeyance Pending
Exhaustion of State Remedies, (Doc. 4), and Motion to Appoint
Counsel, (Doc. 6), be denied as moot and/or unripe. The
Recommendation was served on the parties to this action on
October 10, 2019. (Doc. 9.) Petitioner filed timely objections
to the Recommendation. (Doc. 10.)
This court is required to “make a de novo determination of
those portions of the [Magistrate Judge=s] report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.” Id.
However, in this case, Petitioner’s objection is directed
to an order issued by the Magistrate Judge denying Petitioner’s
Motion to Appoint Counsel, (Doc. 6). The Magistrate Judge denied
the motion to appoint counsel as moot and/or not ripe. (Doc. 8
at 3.) The motion to appoint counsel is a pretrial matter, not
dispositive of Petitioner’s claims. 28 U.S.C. § 636(b)(1)(A)
provides that “[a] judge of the court may reconsider any
pretrial matter under this subparagraph (A) where it has been
shown that the magistrate judge’s order is clearly erroneous or
contrary to law.”
In Petitioner’s objections, he indicates that he “agrees
with” the Magistrate Judge’s recommendations that the court
dismiss the Petition without prejudice and deny Petitioner’s IFP
application and motion to stay federal proceedings, and that he
objects only to the Magistrate Judge’s Order denying
Petitioner’s Motion to Appoint Counsel as moot and/or unripe.
(Doc. 10 at 2.) In that regard, Petitioner “requests that this
[c]ourt reconsider the Magistrate [Judge]’s ruling, in order to
permit [Petitioner’s counsel] to seek compensation for the time
needed to prepare [Petitioner’s] protective federal habeas
petition, memorandum supporting the petition, motion to stay
federal proceedings, and brief supporting that motion.” (Id. at
2-3.)
Petitioner maintains that the protective petition and
accompanying documents were “necessary to . . . fully safeguard
[Petitioner’s] potential need to seek review in federal court,”
because of Respondent’s alleged refusal to “stipulate that
[Petitioner’s] federal statute of limitations remained tolled”
and “in light of stringent Fourth Circuit law concerning the
statute of limitations.” (Id. at 3 (citing Rouse v. Lee, 339
F.3d 238 (4th Cir. 2003)).) Petitioner further asserts that,
“[b]efore undertaking any of this work, [his counsel] made
certain it was necessary” by “consult[ing] with their own
experienced colleagues at the Center for Death Penalty
Litigation . . . [and] with professors from Cornell Law School
who are experts in federal habeas law,” and “were advised that
it was necessary to file a protective petition.” (Id.)
Petitioner “requests that the [c]ourt reject the Magistrate
[Judge]’s ruling in part, and pursuant to 18 U.S.C. § 3599,
appoint David Weiss and Johanna Jennings as [Petitioner’s]
attorneys, nunc pro tunc to March 18, 2019, for the limited
purpose of allowing counsel to seek compensation for 35 hours of
attorney time and 22 hours of paralegal time.” (Id. at 4.)
“In any post conviction proceeding under [28 U.S.C. § 2254]
seeking to vacate or set aside a death sentence, any defendant
who is or becomes financially unable to obtain adequate
representation . . . shall be entitled to the appointment of one
or more attorneys . . . in accordance with subsections (b)
through (f).” 18 U.S.C. § 3599(a)(2). In turn, subsection (e)
provides that “each attorney so appointed shall represent the
defendant throughout every subsequent stage of available
judicial proceedings, including . . . all available post-
conviction process, together with applications for stays of
execution and other appropriate motions and procedures . . . .”
18 U.S.C. § 3599(e) (emphasis added). District courts must
decide what constitutes an “appropriate” (and therefore
compensable) motion under Section 3599(e) “on a case-by-case
basis.” Harbison v. Bell, 556 U.S. 180, 190 n.7 (2009).
In this case, Petitioner has not shown that the protective
Section 2254 petition and the motion to stay proceedings (along
with their supporting memoranda) qualify as “appropriate” under
Section 3599(e). The state court appointed Petitioner’s counsel
on March 18, 2019, (see Doc. 3-9 at 3), and Petitioner filed the
protective petition with this court on April 11, 2019, (see Doc.
2 at 15)1, four days prior to April 15, 2019, which Petitioner’s
1 All citations in this Order to documents filed with the
court refer to the page numbers located at the bottom right-hand
corner of the documents as they appear on CM/ECF.
counsel deemed “the earliest possible date [the petition] could
be due under the one year statute of limitations.” (Doc. 3 at
4.) Because “the right to appointed counsel adheres prior to the
filing of a formal, legally sufficient habeas corpus petition,”
McFarland v. Scott, 512 U.S. 849, 855 (1994), if Petitioner’s
counsel wished to seek compensation for the preparation and
filing of a protective petition and related materials, they
could have (and should have) filed a motion to appoint counsel
with the court during the 28-day period between their
appointment in state court and April 15, 2019, the earliest
possible end of the federal limitations period.2
Doing so would have placed before the court, in a timely
manner, the issue of the appropriateness and necessity of filing
2 Proceeding in that fashion permits the court to make an
initial determination of whether appointment is necessary and,
if some question exists, allows the court to determine whether
to appoint counsel for all purposes or address expedited
briefing on certain discrete issues to determine the
reasonableness of appointment. While this court has concerns
about predicating “reasonableness” on the opinions of attorneys
not entering appearances in the case, as occurred here, in view
of counsel’s own research. This court does understand the
complexities involved and concerns over timeliness.
Nevertheless, “a district court must dismiss habeas petitions
containing both unexhausted and exhausted claims.” Rose v.
Lundy, 455 U.S. 509, 522 (1982); Hedrick v. True, 443 F.3d 342,
364 (4th Cir. 2006). Under these circumstances, no matter how
understandable it may have been for counsel to file a premature
petition, this court declines to announce a rule appointing
counsel to file a habeas petition that is not ripe or holding
that an unripe petition is appropriate.
the documents in question. Indeed, the court may well have ruled
that Petitioner need not file such documents, because
Petitioner’s federal statute of limitations remained tolled
under 28 U.S.C. § 2244(d)(2) by (1) the pendency in state court
of Petitioner’s Motion for Appropriate Relief (“MAR”) under the
Racial Justice Act, (see Doc. 3-8 at 2); and (2) the order from
the North Carolina Supreme Court establishing February 22, 2019,
as the constructive service date of the order denying
Petitioner’s non-Racial Justice Act MAR and extending the
deadline to October 21, 2019, for Petitioner’s counsel to file a
certiorari petition with the North Carolina Court of Appeals,
(see Doc. 3 at 2). Given these circumstances, the court
determines that the documents in question do not qualify as
“appropriate” and compensable under Section 3599(e) and, thus,
no basis exists to grant Petitioner’s Motion to Appoint Counsel.3
Pursuant to Rule 72(a) of the Federal Rules of Civil
Procedure, the court has appropriately reviewed the portions of
the Order and Recommendation to which objections were made and
has determined that the Magistrate Judge’s Order denying
Petitioner’s Motion to Appoint Counsel as moot and/or unripe is
neither clearly erroneous nor contrary to law. This court
3 This court further notes that if and when it does become
appropriate to proceed in Federal court, counsel may seek
appointment and be compensated at that time for their work,
which in turn may overlap with the work already done.
therefore adopts the Magistrate Judge’s Order and
Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge’s Order
and Recommendation, (Doc. 8), is ADOPTED. IT IS FURTHER ORDERED
that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody, (Doc. 2), is
dismissed without prejudice. A Judgment dismissing this action
will be entered contemporaneously with this Order. Finding no
substantial issue for appeal concerning the denial of a
constitutional right affecting the conviction, nor a debatable
procedural ruling, a certificate of appealability is not issued.
This the 23rd day of January, 2020.
*
LS Wi run L. Cahir. □□
United States District Ju
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