The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 JOSEPH MARTIN DANKS, Case No. 1:11-cv-00223-JLT
12 Petitioner, DEATH PENALTY CASE
13 v. ORDER GRANTING UNOPPOSED MOTION
FOR SUBSTITUTION OF COUNSEL
14 CHANCE ANDES, Warden of San Quentin
Rehabilitation Center, (Doc. 116)
15
Respondent.1
16
17 Petitioner, through appointed counsel the California Habeas Corpus Resource Center
18 (“HCRC”) by lead counsel Gary D. Sowards and associate counsel Margo Hunter and Melissa
19 Burkhart, moves to substitute the Office of the Federal Defender for the Eastern District of California -
20 Capital Habeas Unit (“CHU”) as co-counsel in place of Ms. Hunter and Ms. Burkhart in this 28 U.S.C.
21 § 2254 capital habeas proceeding.
22 The Court, finding the matter amendable to resolution on the papers,2 GRANTS the requested
23 relief, as discussed below.
24 BACKGROUND
25 In 1993, Petitioner was convicted in Kern County Superior Court of the first degree murder of
26 his cellmate and sentenced to death. (See Doc. 28, at 19-20.) At that time, he was serving six life
27 1 Chance Andes, Warden of San Quentin Rehabilitation Center since December 2024, is substituted as
Respondent in place of his predecessor wardens. Fed. R. Civ. P. 25(d).
1 sentences for six prior convictions of first-degree murder Id. In 2001, Petitioner filed his direct appeal.
2 (See id., at 25.) The California Supreme Court affirmed the conviction and sentence and denied
3 petition for rehearing in 2004. (See id., at 26.) The United States Supreme Court denied certiorari.
4 Danks v. California, 543 U.S. 961 (2004). In 2003, Petitioner filed in the California Supreme Court a
5 first petition for writ of habeas corpus. (See Doc. 28, at 27.) The California Supreme Court denied
6 Petitioner’s first petition for writ of habeas corpus in 2010. (See id., at 30.)
7 Petitioner began this federal proceeding on February 9, 2011 by filing a request for a stay of
8 execution and appointment of counsel. (Doc. 1.) The Court appointed HCRC as his counsel soon
9 thereafter. (Doc. 5.) On September 13, 2011, Petitioner filed a second petition for writ of habeas
10 corpus in the California Supreme Court. (See Doc. 28, at 30-31.)
11 On September 15, 2011, Petitioner filed his operative § 2254 habeas corpus petition in this
12 Court. (Doc. 28.) Later that same year, the Court: (i) dismissed as premature Claim 36 (alleging
13 execution incompetence), (ii) stayed these federal proceedings in abeyance of state exhaustion
14 proceedings, and (iii) found the equal protection subclaims in Claims 31 and 33 to be unexhausted.
15 (See Doc. 34, at 6, 10; Doc. 41, at 2.) On September 10, 2021, the Kern County Superior Court denied
16 all claims in Petitioner’s second petition for writ of habeas corpus. (See Doc. 70, at 2.) A month later,
17 the California Court of Appeal denied Petitioner’s appeal and request for a certificate of appealability.
18 (See id.) In January 2022, the California Supreme Court denied Petitioner’s petition for review. (See
19 id.) In October 2022, the United States Supreme Court denied Petitioner’s petition for writ of certiorari
20 (See Doc. 73, at 2), and this Court lifted the exhaustion stay. (See Doc. 74, at 1.)
21 On March 10, 2023, the Court struck from the § 2254 petition the unexhausted equal protection
22 subclaims in Claims 31 and 33. (Doc. 81.) In August 2023, Respondent filed his answer to the federal
23 petition. (Doc. 98.) In January 2024, Petitioner filed his reply in support of the federal petition. (Doc.
24 108.) Petitioner’s merits brief in support of the federal petition is due on August 20, 2025. (Doc. 114.)
25 DISCUSSION
26 Current and proposed counsel and Petitioner jointly seek permission from the Court to
27 substitute counsel in the case. In support of the motion, HCRC Interim Executive Director Nisha Shah
1 state court workload and a corresponding need for HCRC to reduce its federal court habeas workload,
2 (2) current counsel have met with Petitioner and explained the proposed substitution of co-counsel, (3)
3 Petitioner has agreed to and signed off on the proposed substitution, and (4) Mr. Sowards has
4 conferred with counsel for Respondent, Deputy Attorney General Justain P. Riley, who does not
5 object to the proposed substitution including CHU’s anticipated need for a reasonable extension of
6 time to become familiar with the case. (Doc. 116, at 7-9; Doc. 116-1.) Assistant Federal Defender
7 David Harshaw III, a Co-Supervisor of the CHU, supports the motion by representing that: (1) the
8 CHU is able to represent Petitioner with Mr. Sowards remaining as lead counsel, and (2) the Selection
9 Board for the Eastern District of California supports the substitution. (Doc. 116, at 10-11.)
10 “In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code,
11 seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to
12 obtain adequate representation or investigative, expert, or other reasonably necessary services shall be
13 entitled to the appointment of one or more attorneys. . . .” 18 U.S.C.A. § 3599(a)(2). “Unless replaced
14 by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each
15 attorney so appointed shall represent the defendant throughout every subsequent stage of available
16 judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals,
17 applications for writ of certiorari to the Supreme Court of the United States, and all available post-
18 conviction process, together with applications for stays of execution and other appropriate motions and
19 procedures, and shall also represent the defendant in such competency proceedings and proceedings
20 for executive or other clemency as may be available to the defendant.” 18 U.S.C. § 3599(e).
21 The Local Rules of the Eastern District of California outline the procedure for the appearance
22 and substitution of counsel. Local Rule 182 explains that if an attorney does not appear in the initial
23 filing, the attorney may appear by “by filing and serving on all parties a substitution of attorneys as
24 provided in (g).” Local Rule 182(a)(2); see also E.D. Cal. General Order 671 at 27-34 (internal
25 pagination); Local Rule 191(c). Subsection (g) of Local Rule 182 provides that:
26 An attorney who has appeared in an action may substitute another attorney and thereby
withdraw from the action by submitting a substitution of attorneys that shall set forth
27 the full name and address of the new individual attorney and shall be signed by the
withdrawing attorney, the new attorney, and the client. All substitutions of attorneys
1 The Court finds that Petitioner’s instant motion complies with the above noted standards.
2 | Particularly, the CHU is qualified and has the resources to represent Petitioner as co-counsel with lead
3 | counsel Sowards. Petitioner has discussed the matter with counsel and thereupon consented to and
4 | signed off on the substitution. Thus, the Court ORDERS:
5 1. The unopposed motion for substitution of counsel (Doc. 116) is GRANTED. The
6 | current case scheduling REMAINS in full force and effect.
7 2. The Clerk of the Court is directed to serve this order upon: (1) counsel for the parties,
8 | and Gi) David Harshaw HI, Assistant Federal Defender, 801 I Street, Third Floor, Sacramento, CA
9 | 95814, david_harshaw @fd.org, who will provide Petitioner a copy of this order.
10
i IT IS SO ORDERED.
12] Dated: _ August 12, 2025 Cerin | Tower
TED STATES DISTRICT JUDGE
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28