The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
MICHAEL DeWAYNE SMITH, )
)
Petitioner, )
)
v. ) Case No. CIV-09-293-D
)
CHRISTE QUICK, Warden, )
Oklahoma State Penitentiary, )
)
Respondent. )
ORDER
Before the Court is a motion by Petitioner’s counsel filed ex parte and under seal,
and requesting the opportunity to present the motion more fully in an in camera hearing.
[Doc. No. 115]. Lead counsel, Mark Henricksen, was permitted to do so and the Court has
considered both Mr. Henricksen’s oral presentation and the written filing. For the reasons
set forth below, counsel may not withdraw from their representation of Petitioner.
Following Petitioner’s dissatisfaction with his original appointed counsel, on
October 18, 2023, Petitioner’s current counsel was appointed pursuant to 18 U.S.C.
§ 3599(e). [Doc. No. 103]. In late December, Petitioner requested removal of current
counsel, which the Court denied. [Doc. Nos. 109, 110]. The Court is aware there is tension
between Petitioner and current counsel, but the statute under which counsel was appointed
does not contemplate withdrawal of counsel “[u]nless replaced by similarly qualified
counsel,” and Supreme Court jurisprudence makes clear such replacement may only be
done if it is in the “interests of justice.” 18 U.S.C. § 3599(e); Martel v. Clair, 565 U.S.
648, 663 (2012); see also Christenson v. Roper, 574 U.S. 373, 377 (2015) (explaining that
18 U.S.C. § 3599 does not entitle indigent defendants to “the right to counsel of their
choice”). There has been no suggestion that current counsel be replaced by similarly
qualified counsel. And even if such replacement had been proposed, with the impending
deadlines of Petitioner’s clemency hearing packet due on February 16th and Petitioner’s
clemency hearing set for March 6th, doing so at this late date would not be in the interest
of justice.
Moreover, as § 3599(e) dictates that counsel “shall” represent Petitioner in
“proceedings for executive or other clemency as may be available to the defendant,”
current counsel’s appointment extends for the duration of Petitioner’s clemency
proceeding. 18 U.S.C. § 3599(e).1 And with respect to that proceeding, the Oklahoma
Pardon and Parole Board’s Procedures indicate that Petitioner is to be represented in
preparation for and during his clemency hearing by a Legal Representative for the
Offender, defined as “a person or persons who is licensed to practice law and appointed or
authorized to represent the Offender.” Okla. Admin. Code § 515:10-1-2. Petitioner’s
counsel clearly qualify as his Legal Representative and the Board Procedures clearly set
forth counsel’s responsibilities, including writing and submitting the clemency hearing
packet, receiving forty minutes to make a presentation to the Board, and deciding whether
1 Counsel appointed under § 3599(e) “shall represent the defendant throughout 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 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
executive or other clemency as may be available to the defendant.” 18 U.S.C.A. § 3599(e).
to reserve any of that time for rebuttal. Jd. §§ 515:10-1-2, 10-5-1, 10-5-2. Additionally, if
Petitioner desires that others also speak on his behalf at the clemency hearing, counsel, in
cooperation with such person(s), may allocate time to them to do so. /d. § 515:10-5-2. The
Court is confident that Petitioner’s counsel are more than capable of fulfilling the
responsibilities for which they have been appointed.* Accordingly, counsel’s motion is
DENIED.
IT IS SO ORDERED this 14" day of February, 2024.
\" \ OK
Nd Q.
TIMOTHY D. DeGIUSTI
Chief United States District Judge
In light of “the seriousness of the possible penalty and the unique and complex nature of
the litigation,’ § 3599 reflects Congress’ efforts to provide “enhanced rights of
representation” and “quality legal representation” for habeas petitioners facing execution.
Martel, 565 U.S. at 659 (internal quotation marks omitted and alteration incorporated); 18
U.S.C. § 3599(d).