Opposition Brief — Charles Russell Rhines, Petitioner v. South Dakota

No. 17-8791

In The

Supreme Court of the United States

OCTOBER TERM 2017

+

CHARLES RUSSELL RHINES,

Petitioner

v.

STATE OF SOUTH DAKOTA,

Respondent

+

On Petition For A Writ Of Certiorari

To The Supreme Court Of South Dakota

+

RESPONDENT’S APPENDIX

+

Marry J. JACKLEY, South Dakota Attorney General

PAUL S. SWEDLUND, Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

1802 East Highway 14, Suite 1

Pierre, SD 57501-8501

Telephone: 605-773-3215

Facsimile: 605-773-4106

paul.swedlund@state.sd.us

Attorneys for Respondent

State of South Dakota

CIVIL PROCEDURE

Section :

15-6-80--STENOGRAPHIC REPORT OR TRANSCRIPT AS EVIDENCE.

15-6-80. Stenographic report or transcript as evidence.

XI, GENERAL PROVISIONS.

15-6-81—APPLICABILITY.

15-6-81(a). Procedure preserved.

15-6-81(b). Omitted.

15-6-81(c). Appeals to circuit courts. .

15-6-81(d). ° Chapter incorporated into statutes.

15-6-82—TURISDICTION AND VENUE.

45-6-82. Jurisdiction.and venue.

1$-6-83—-RULES BY COURTS OF RECORD.

{5-6-83. Rules by courts of record, .

: 15-6-84—FORMS.

15-6-84. Forms,

15-6-85—TITLE,

15-6-85. Title, .

{5-6-86—BFFECTIVE DATE.

15-6-86, Effective date. ,

APPENDIX A. SPECIAL PROCEEDINGS.

APPENDIX B. CIRCUIT COURT RULES.

APPENDIX OF FORMS.

Cross References

Courts and judiciary, Supreme Court, rulemaking powers, see § 16-3-1 et seq.

‘Law Review and Journal Commentaries

Van Patten, Themes and Persuasion, 56 S.D.

L. Rev, 256 (2011).

I. SCOPE OF CHAPTER—ONE FORM OF ACTION

1§-6-1—SCOPE OF CHAPTER

15-6-1. Scope of Chapter

This chapter governs the procedure in the circuit courts of the State of South

Dakota in.all suits of a civil nature, with the exceptions stated in § 15-6-81. It

shall be construed to secure the just, speedy and inexpensive determination of

every action.

Source: SD RCP, Rule 1, as adop'

ted by Sup: Ct. Order March 29, 1966, effective July 1,

1966. oe ;

- £48.

APPENDIX 001

RULES OF PROCEDURE IN CIRCUIT COURTS §$.15-6-59(a)

Law Review and Journal Commentarles

Parsons, Appellate Practice in the South Dakota Supreme Court, 56 §.D. L. Rev, 1 (2011).

15-6-59(a). Grounds for new trial :

A new trial may be granted to all or any of the parties and on all or part of

the issues for any of the following causes:

(1) Irregularity in the proceedings of the court, jury, or adverse paity or

any order of the court or abuse of discretion by which either party was

prevented from having a fair trial;

(2) Misconduct of the jury; and whenever any one or more of thé jurors

have been induced to assent to any general of special verdict or to a

finding oni any: question submitted to them by the court, by a resort to

the determination df charice, such misconduct may be proved by. the

affidavit of any one of the jurors; =

(3) Accident or surprise which ordinary prudence. could not have guarded

against;

(4) Newly discovered evidence, mat to’ tha party making the application, which he could not with reasonable diligence have discovered and

‘produced at the ‘trial;

() Excessive or inadequate damages appearing to have been given wider

| the influence of passion or prejudices: .

(6) Insufficiency of the evidence to justify the verdict or other a

that it is against law;

(7) Error of law occurring at the trial; provided, that ‘the cage. of claim

' “of error, admission, rejection of evidence, or instructions 'to the jury

. failure ofthe court to. make a finding or “conclusion upon @ material

issue which had not been proposed or-requested, it maust be based upon

> an objection, offer. of préofor’a motion to strike., :

On a motion-for a new trial in an action tried without a jury, the ‘tourt may

open the judgment if one has been enteréd, take additional testimony, amend

findings of fact arid conclusions of law or make new findings and conclusions,

and direct the entry of a new judgment.

When the motion be made for 4 cause’ niéntioned in subparagraphs a); Q),

(3), or (4), it must be made upon affidavits attached to and made a part of thd

motion, unless as to a cause mentioned in subparagraph (1), the irregularity or

abuse of discretion:-is sufficiently -disclosed by the record to -support stich

motion. ‘When the'motion is made" under ‘ditbparagraph (6) it shall state’ the

particulars wherein the evidence is claimed to be insufficient.

Source: SDC 1939 & Supp 1980; §§ 33.1605, 33.1606; SD RCP, Rule 59'(a), as adopted

by Sup. Ct. Order March’ 29, 1966, ‘effective July 1, 1966; SL 1978, ch 178, §.568,

_ 3 : -_ Cross References,

Appellate procedure,- .

Actions available‘to Supreme Court on , dectsion,, see § 15-26A-12. :

Judgments and orders prem which appeal may. be taken, see § 15-26A-3.

’ 601

APPENDIX 002

RULES OF PROCEDURE IN CIRCUIT COURTS § 15--6-60(b)

include failure to tiemorialize part of a deci- suppert, alimony, and property division, to file

sion, Reaser.v. Reaser, 688 N.W.2d 429, 2004 previously signed order reinstating another

S.D. 116. Appeal And Error 440 judge’s custody order, where act of filing was

trivial or clerical matter; decision memorialized

4. Filing of order | in order at issue was made prior to filing of

Trial court retained jurisdiction, following notice of appeal, and omission was simple delay

former husband’s filing of notice of appeal from in clerical act of filing guch order with clerk,

colirt's sta “sponte vacation ‘af portions of di- Reaser v. Reaser, 688 N.W.2d 429, 2004 S.D.

vorce decree dealing with child custody, child 116, Child Custady € 906

15-6-60(b). Relief on ground , of mistake--Inadvertence—Excusable neglect—Newly discovered evidence—Fraud be

On motion and upon‘such terms as are just, the court may relieve a party 01

his legal representative froma final judgment, order, or, proceeding for the

following reasons: , : =

(1) Mistake, inadvertence, surprise, or excusable neglect; P48:

(2) Newly discovered evidence which by. due diligence could not have been

discovered in time to move for a new trial under § 15~6-59(b); -

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; Tee

(4) The judgment is ‘void; Bs -

(5) The judgment has been satisfied, released, or discharged, or a prior

judgment upon which it is based ,has been reversed or otherwise

vacated, or it is no longer’ equitable’ that the judgmient should have

: “prospective application; or : a

(6) Any other reason justifying re lief fromthe operation of the judgment.

The motion shall-be made within a reasonable time; and for reasons (1), (2),

and'(3)not more than one year after the juc ment, order or proceeding was

entered or taken. A motion under this subdivision (b) does not affect ‘the

finality of a judgment er suspend its operation. Sectiori 15-6~60 does not limit

the power of a court to entertain an independent action to relieve a party from

a judgment, order, or proceeding, or to grant relief to a defendant not actually

personally notified as provided by statute or to set aside a judgment for fraud

upon the court, °- - sah

Source: SDC 1939 & Supp 1960, § 33.0108; SD RCP, Rule 60 (b), as adopted’ by Sup.

Ct. Order March 29, 1966, effective July 1, 1966. _ Sf ws

Cross References

ice, time alldwed after judgment for defense, see § 15-9-22. -

Quieting tax title; relief from judginent, see § 21-42-19.

Quiet title judgment, rellef, see § 21-41-25. . fol bat

Small claims procedure, relief from judgment, see §§ 15-39-75 and 15-39-76.

Law Review and Journal Commentaries

Hinrichs, Weston v, Jones: Using State Court Nelsen, In: Re DF.:-The South Dakota Su-

Subject Matter Jurisdiction by Estoppel to Un- preme Court Misses an Opportunity to Establish

dermine Tribal Sovereignty, 45 S.D, L. Rev. 345 An Appropriate Due Diligence Standard When

(2000). Serving Notice by Publication in Parental

629

APPENDIX 003

‘VIDENCE

¥B:

n difference

1, the whole

vpreter:

impartially

ition to any

tions which

statements

Jing] under

3 pains and

ot object to

2016, ch 239

WITNESSES

§ 19-19-606

Research References

ALR Library

Disqualification of judge on ground: of being a

witness in the case, 22 A.L,R.3d 1198.

Judge as a witness in a cause on trial before him,

157 ALR. 315,

Treatises and Practice Aids

Wharton’s Crirainal Evidence § 49:41.

Wright & Miller: Federal Prac. & Proe, § 6061.

Notes of Decisions

In general 1

1. Ingeneral

Naming trial judge as witness in information

charging defendant with aix counts of second-degree rape was not, grounds for dismissel of infor-

19-19-606. Juror’s competency as a witness

mation, where trial judge was named as a witness

because he was state's attorney at time defendant’a

probation waa revoked on previous criminal violation and trial court ordered name struck from

information. State v. Mitchell, 1992, 491 N.W.2d

438, denial of habeas corpus affirmed 624 N.W.2d

860, Indictment And Information 6 144.1(1)

(a) At the trial. A juror may not testify as a witness before the other jurors at the trial.

jury’s presence.

; Ifa juror is called to testify, the court must give a party an opportunity to object outside the

(b) During an inquiry into the validity of a verdict or indictment.

(1) Prohibited testimony or other evidence. During an inquiry into the validity of a

verdict or indictment, a juror may not testify about any statement made or incident

that oceurred during the jury's deliberations; the effect of anything on that juror’a or

another’ juror's vote; or any juror’s mental ‘processas concerning the verdict or

indictment. The court may not receive a juror’s affidavit or evidence, of a jurar’s

statement on these matter's.

(2) Exceptions: A juror may testify about whether: :

(A) Extraneous prejudicial information was improperly brought to the jury's atten-

tion;

(B) An outside influence was improperly brought. to bear on any juror; or

(C) A mistake wes made in entering the verdict on the verdict form.

Source: SL 1979, ch 858 (Supreme Court Rule 78-2, Rule 604); SDCL §§ 19-14-6, 19-14-7; SL 2016, ch

289 (Supreme Court Rule 15-89), eff. Jan. 1, 2016;

a Law Review and Journal Commentaries .

Engel, Note: Stete v Finney: Admissibility of §.D.C.L. Section 19-147, 29 S.D. L. Rev. 144

Juror Affidavits Alleging Raclal Prejudice Under

Library References

Criminal Law €#957.

‘New Trial 143.

Trial e344,

Witnesses ¢768, 73.

(1988).

CS, Criminal Law §§ 1415 to 1418." 2

C.J.8. New Trial §§ 207 to 208, 210, 214 to 215.

CLS, Trial §§ 921 to 926. *

G.LS. Witnesses §§ 191 to 193, 197, 199,

Research References

ALR Library

Misconduct of juror in clvil case outside jury

room, admissibility of juror’s, affidavit or testimony relating to, 32 A.L.R.3d 1356.

Prejudicial Effect of Juror Misconduct Arising

from Internet Usage, see 48 A.L.R.6th 135.

Propriety of Juror's Tests or Experiments Outside of Court or Jury Room, see 77 AL.R.6th

251.

Encyclopedias

24 Am, Jur, Proof of Facts 2d 633,

Treatises and Practice Aids

Wharton's Oriminat Evidence $8 50:42, B4:42,

176

APPENDIX 003.5

§ 21-27-38

Note 2.5

Young, 879 N.W.2d 108, 2016 §,D, 89. Habeas

Corpus 6911 :

8, Summary diamisaal

A court may dismiss a habeas corpus petition for

failure to state a claim only if it appears beyond

doubt that the petition sets forth no facts to support a claim for relief. Riley v. Young, 879 N.W.2d

108, 2014 S.D. 89. Habeas Corpus € 691.1

To dismias an application for a writ of habeas

corpus without receiving evidence, the application

must he unspecific, conclusory or speculative, aetting forth no facts that could support a claim for

relief; the application must fail to meet a minimum

21-27-3.1. Time for application

perfected.

Source: SL. 1988, ch 169, § 4; SL 2012, ch 118, § 1.

SL 2012, ch,118, § 1, rewrote the section, which.

“Yaad:

_ "An application for relief under this chapter may

he filed at any time except that proceedings there-

ALR Library :

Actual Innocence Exception to Procedural Bars

in State. Post-Conviction Proceedings, see 97

ALR.6Gth 263, :

Statute of Bmitations, tolling during pendency -of certiorari petition in the Supreme Court seeking review of denial of

state postconviction relief, see Lawrence

v. Florida, 2007, 127 S.Ct, 1079, 549 U.S.

_ 927, 166 L.Bd.2d 924,

‘Timeliness of petition, collateral review, see

‘Wall v, Kholi, 2011, 181 S.Ct, 1278, 642

US, 545, 179 L.Ed2d 252..

The repealed section, which ‘related to dismissal

. af delayed applications, was derived from SL 1989,

190.

JUDICIAL REMEDIES °

threalold of plausibility. Riley v, Youmg, 879 —

N.W.2¢ 108, 2016 8.D, 99, Habezs Corpus 6 676

4, Burden of proof. ao

A habees corpus applicant has the initiat burden

of proof to establish a calorable claim for relief.

Lawrence v. Weber, 797 N.W.2d 788, 2011 §.D, 19,

Habeas Corgus @ 705.1

‘The applicant fot habeas corpus murat satlefy the

initfal burden ‘to prove the need for relief by a

preponderance of the evidence. Lawrence v. Weber, 797 N.W.2d 788, 2011'S:D. 19. Habeas Corpus

74.

Proceedings under this chapter cannot be maintained while an appeal from the applicant’s

conviction and sentence is pending or during the time within which such ‘appeal may be

ea,

Historical and Statutory Notes

under cannot be maintained while an appeal from

the applicant's conviction and aentence is pending

or during the time within which such appeal may

be perfected.”

Research References

United States Supreme Court

_ Timeliness of petition, prisoner to seek relief without substantial ‘delay, see Walker

. ¥, Martin, 2011, 181 S.Ct, 1120, 562 US.

. 807, 179 L.Bd.2d 62.

Timeliness of petition, miscalculation of tolling. period, sua sponte corrections by federal court, see Day v. McDonongh, 2006,

126 S.Ct. 1675, 647 U.S, 198, 164 L.Ed.2d

876, reheaving denied 127 8.Ct. 1994, 549

U.S, 1261, 167 L.Bd.2¢ 176,

21-27-82, Repealed by SL 2012, ch 118, § 2 :

Historical and Statutory Notes

21-27-3.3. Two-year statute of limitation

A two-year statute of limitation applies to all applications for relief under this chapter.

This limitation period shall run from the latest of: ;

(1) The date on which the judgment became final by the eonelusion of direct review or

" the expiration of the time for seeking such review; . ;

(2) The date on which the impediment to filing an application created by state.action in

violation of the constitution or laws of the United States or of this atate is removed, if

auch impediment prevented the applicant from filing;

90 .

(4) T

be

Source; S)

ALR Libii

Actual I

in State

ALRG

Federal h:

Limit

Cla

Actual in

Due proc

Retroact

*% Due’

. To me

patitional

passage «

period &

years fr

timely fi

Dooley, }

tonal L

21-27-

as

Ifa)

color o

court 0

shown’

if the:

procect

counse.

pergon

of all:

issuing

appoin

chapte

Source

ch 118,

APPENDIX 004

REMEDIES

v. Young, 879

Corpus > 676

8 initial burden

laim for relief.

3, 2011 8.D. 19.

aust satisfy the

for relief by a

vrence v, Webdaheas Corpus

2 applicant's

paal may be

7 appeal from

ice is pending

h appeal may

* : to seek resee Walker

20, 562 U.S,

‘ation of tolltions by fednough, 2008,

tee L.Bded

3b, 1894," 549

8 chapter.

review or

-action in

smaved, if

* Actual Innocence Exception to Procedural Bars

* % Due process , govern at trial. Engesser vy. Young, 856 N.W.2d

“proceeding, appoint counsel for the indigent person pursuant to chapter 234-40. Such

JUDICIAL REMEDIES *

(8), The date on which the constitutional right asserted in the application’ Was. initially

recognized by the Supreme Court of the United States or the Supreme Court of this

state if the right has both been newly recognized and is retroactively applicable to

cages on collateral review; or

(4) The date on which the factual predicate of the claim or claims Presented ould have

been discovered through the exercise of due diligence.

Source: SL 2012, ch 118,-§ 8."

Research References

ALR Library

in State Post-Conviction Proceedings, see 97 1

ALR.6th 263,

United States Supreme Court

Federal habeas corpus, . to state prisoners’ habeas pettlons, see

Limitation of actions, Wood v. Milyard, 2012, 182.8. Ct. 1826,

Claim of actual innocence can overcome 182 L.Ed.2d 733. "Haheas Corpus 848

statute of limitations for atate prisoner's

initial petition for federal habeas relief, Linientone period ot Alo fedora habeas

seo MeQuiggin v. Perkins, 2013, 198 8.Ct. R ea i B a, oe

1924, 185 LEd2d 1019. Habeas ‘Corpus direct appeal in state courts expired, see

G=608,18 Gonzalez v. Thaler, 2012, 182 S.Ct 641,

Federal appellate courts can in exceptional | 181 L.Ed.2d 619,

cases raise forfeited limitations defensea

Notes of Decisions —

Actual innocence 1- 1, Actual innocence

Dueprocese % . When considering a claim of actyal. innocence,

Retroactive application 2 the habeas comt must consider. all’. the evidence, ©

: old and new, incriminating and exculpatory, witha out regard to whether it would necessarily be

admitted under rules of admissibility. that would

. To meet requirements of due process, *pabeas 471, 2014 8.D. 81. Habeas Corpus 462

petitioner, whose conviction became final prior to » potroactive application :

passage of atatute establishing two-year limitations" setion filed by Theheas petitioner, whose convieperiod for habons claims, had an additional two tion became final prior to passage of statute éatabyears’ from effective date of statute to permit lishing two-year limitations peridd for habeas

timely filing of his habeas action. Hughbanks v. ¢laims, was subject to limitations period’ set forth

Dooley, 887 N.W.2d 319, 2016 S.D. 76. Constitu- in statute. Hughbanks y, Dooley, 887 N.W.2d 319,

tional Law ¢= 4489; Habeas Corpus @ 6038 20168.D, 76. Habeas Corpus € 608.3

21-27-4. Counsel appointed for indigent applicant—Counsel fees—Ineffective

assistance of counsel

If a person has been committed, detained, imprisoned, or restrained of liberty, under any

color or pretense whatever, civil or criminal, ‘and if upon application made in good faith tothe ©

court or judge thereof, having juriediction, for a writ of habeas corpus, it is satisfactorily

shown that the person is without means to prosecute the proceeding, the court or judge shall,

if the judge finds that auch appointment is necessary to ensure a full, fair, and impartial

counsel-fees or expenses shall be a charge against and be paid by the county from which the

person was committed, or for which the person is held as determined by the court... Payment

of all such fees or expenses shall be made only upon written order of the court; or judge

issuing the.writ. The ineffectiveness or incompetence of counsel, whether ‘retained or

appointed, during any collateral post-conviction proceeding is not grounds for reli tinder this

chapter,

eree sl 1948, ch 128; spc Supp 1960, § 97.5604-1; SL 1969, ah 168; SL 1988, ch 160, § & SL 2012,

ch 118,

91

APPENDIX 005

MEDIES

sattial pro-

for capital

ars is govstandard,

Jentencing

iv. Clair,

id.2d 136,

ourt held

vating pepetitioner

a hearing

2010 $.D,

3 Corpus

‘stance of

sel’s perar-lawyer

1 decizion

considerto insure

realm of*

‘ofession,

3D. 100,

connael,

awesumpthin the

kolaev v.

Criminal

counsel

& unless

Jefers to

ag eounita own

+ actions

‘anee of

72, 2005

Corpus

ta only

relief is

ant the

d, 798

> 600

§ 21-27-14

. ‘ Note 6

21-27-5.1. Second or subsequent application for writ—Leave to file—Dismiss-

al .

A claim presented in a’ second or subsequent habeas corpus application under this chapter

tliat was presented in a prior application under this chapter or otherwise to the courta of this .

state by the same applicant shall be dismissed. ‘

Before a second or subsequent application for a writ of habeas corpus may be filed, the

applicant shall move in the cireuit court of appropriate jutisdiction for an order authorizing

the applicant to file the application,

‘The assigned judge shall enter an order denying leave to file. a second or successive

application for a writ of habeas corpus unless:

(1) The applicant identifies newly discovered evidenee that, if proven and viewed in light

of the evidence as a whole, would be sufficient to establish by clear and convincing

evidence that no reasonable fact finder would have found the applicant guilty of the

underlying offense; or . me

2) The application raises a new. rule of constitutional law, made retroactive to cases on

collateral review by the United States Supreme Court and the South: Dakota

Supreme Court, that was previously unavailable. The grant or denial of sneuthori-

JUDICIAL REMEDIES

zation by the circuit court to file a second or subsequent application shall‘not he

appealable.

Source: SL 2012, ch 118, § 5.

- Research References

ALR Library

* Actual Innocence Exception ta Procedural’ Bars

in State Post-Conviction Proceedings, see 97

ALR. 6th 263.

Notes of Decisions

Newly discovered evidence 1

1. Newly discovered evidence

In order to file successive petition for writ of

habeas corpus, a defendant was requived to show

only the existence of newly discovered evidence,

rather than constitutional error in addition to newly discovered evidence, where applicable statute

gave a habeas court authority to consider merits of

successive petitions for writ of habeas corpus if

defendant brought forth newly discovered evidence

that, if proven and considered In light of other

evidence, clearly and convincingly established that

no reasonable fact finder would have found defendant guilty of underlying offense, and there was no

statutory requirement of a showing of constitution-

21-27-14. Hearing and disposition of cause by judge

Notes of Decisiona 7

* of the criminal act, application of the corroboration

2 Right to hearing

Habeas corpus. petitioner wes entitled to an evidentiary hearing on his claim that defense counsel

rendered ineffective assistance by allegedly failing

to advise him of the corroboration rule before he

pleaded guilty to sexual-contact with a child; petitioner asserted that his incriminating statements

to law enforcement officers were the only evidence

“98

al eror, Engesser -v. Young, 856 N.W.2d 471,

2014 S.D. 81, Habeas Corpus = 898@)

Defendant's newly discovered eviderice, if proven

and viewed in light of other evidence, established

by clear and convincing evidence that no reasonable juror would have found defendant‘guilty, and

therefore defendant was entitled to new trial on

habeas corpus - petition following vehicle manslaughter and vehicle battery conviction, where

newly discovered evidence consisted of two witnesses who testified that a woman was driving the

vehicle shortly, before the crash, and.:the only

dispute issue at trial was whether defendant or 3

woran in the vehicle waa driving the veliicle ‘at the

time of the crash, Engesser v: Young, 856:'N.W.2d

471, 2014 $.D, 81, Habeas Corpus’ ¢=-49:

mule could require 2 judgment of acquittal, and his

allegationa were not unspecific, conclusory, or

apeculative, Steiner v. Weber, 816 N.W.2d 649,

2011 S.D. 40, Habeas Corpus = 746

6 Presumptions and burden of proof

‘The habeus petitioner bears the initlal burden of

showing by a preponderance of the evidence that

APPENDIX 006

A

§ 23A-27-4

Note 13

In determining whether sentence appears

grossly disproportionate, Supreme Court considers the conduct involved, and any relevant

past conduct, with utmast deference to the Legislature and the sentencing court; if the sentence appears grossly disproportionate, an intrae and inter-jurisdictional analysis shall be

conducted. State! v, Dubois, 746 N.W.2d 197,

+ 2008 S.D, 15. Sentencing And Punishment eS

1482

‘When assessing the constitutfonality ‘of a particular senterice, Supreme Court applies the

gross disproportionality test. State v. Dubois,

746 N.W.2d 197, 2008 S.D. 15, Criminal Law

© 1134.75.

Only when the sentence appears grossly disproportionate will Supreme Court reviewing

Eighth Aniendment challerige to seritence conduct an intra and inter-jurisdictional analysis.

‘State v. Blair, 721 N.W.2d 55, 2006 S.D. 75,

rehearing deniéd. Sentencing And Panis iment

> 1482: *

TS. assess a challenge ‘ta proportionality of

sentencing. under the Eighth Amendment, Supreme Court first determines whether the sentence appears grossly disproportionate; ta accomiplisti this, appellate cotrt considers ‘the

conduct involved, and any relevant past con-

‘and the senteliding court, and if thésé circum-

- stances fail to suggest gross ’ disproportionality,

review'ends, State v, Blair, 721 N.W.2d 55,

2006 S.D. 75, rehearing denied. Sentencing

Arid Punishment € 1482

if circuristances fail to suggest gross disproportionality of sentence challenged as cruel and

unusual punishment, under Eighth Amendment,

the Supréme Court's review ends; if, on the

other hand, the sentence appears grossly disproportionate, the Supreme Court may, in addition

23A-27-4.1,

‘CRIMINAL PROCEDURE

to examining other Sclem factors, conduct an

intra- and inter-jurisdictional analysis to aid its

compari: ion or reraand to circuit court to con-

comparison befort ‘resentencing; the

‘court may also consider. other rele-

&, such as effect upon society of this

type: ‘of: offense. U,S.C.A, ConstAmend. 8.

State v.Stahl, 619 N,W.2d'870, 2000 S.D. 154,

Criminal“ Law ad 1134.23; Criminal Law @&

1134.78."

To. assess challenge to proportionality of seritence: ‘under Eighth © Amendment, Supreme

Court first determines whether. sentence appears grossly disproportionate, considering conduct involved, and any relevant past conduct,

with ,utmost deference to. the legislature and

sentencing court; if these circumstances fail to

suggest gross disproportionality, review ends,

but if-sentence appears grossly disproportionate, Supreme Court may, in addition tg examining other Solem factors, conduct.an intra; and

interjurisdictional analysis to‘aid its-comparisoin

or remand to circuit court ‘to conduct suth

comparison: before resentencing, and: Supreme

Court may also consider other relevant factors,

such as effect iipon ‘society of this type of ‘offense. -U,S.C.A. Const/Amend, 8. . State-v, Milk,

607 N.W.2d 14, 2000 S.D, 28. Criminal Law

‘Criminal Law @ 1134, 78; Crimi-

Tn: ‘detebmiining whether | sentence. shocks collective.conscience; Supreme Court examines de;

fendant's general. moral character; .mentality,

habits; social environment, tendencies, . age,

aversion or. inclination to commit-crime; life,

family, occupation, and previous criminal record,” U,S:C.A. Const.Amend. 8, State v. -Herijum, 542 'N.W.2d 760, 1996 s. D. 7. Criminal

Law & 1134. 23, .

Relief from Judgmént—Grounds—Time of motion’

Within a reasonable time but not more than one year afer’ final judgment, a

court on motion of a defendant or upon its own motion may relieve a defendant

from final judgment if required f in the interest of justice, If the original trial

was by a court without a jury, the court on motion of a defendant or upon. it

own motion, may vacate the judgment if entered, order a new trial.or take

additional testimony and direct the entry of a new judgment. :

A motion under this section dees not affect. the finality of a _judgment- or

suspend its operation. .

If an appeal is‘ pending, the court may grant a motion under this section only nw

upon remand of the case. :

Source: SL i987, ch 410 (Supreme Court Rule 86236):

426 ‘

APPENDIX 007

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APPENDIX 008

866 Pa.

COMMONWEALTH of Pennsylvania,

Appellee

ve

. Mark Newton SPOTZ, Appellant.

No. 576 CAP.

Supreme Court of Pennsylvania.

Sept, 9, 2014,

Appellant’s Motions to File Post~Submission Communications Appellant’s Motion for Reeusal of Chief Justice Castille

Appellant's Motion for Withdrawal of Concurring Opinion Commonwealth's Answer

and Motion for Sanctions.

Appellant's Withdrawal of Motion: for

Withdrawal of Concurring Opinion and

Motion for Recusal, ,

Commonwealth’s Answer, including Request for a Rule to Show Cause,

Commonwealth's Request for Leave to

Respond to Verified Statement,

Appellant's Motion to Strike Commonwealth's Response,

SINGLE JUSTICE OPINION

ON POST-DECISIONAL

MOTIONS

Chief Justice CASTILLE.

I, Introduction ~

The central ancillary motion pending

here asks that I withdraw my Concurring

Opinion because I commented on the conduct and agenda of appellant’s counsel,

who are affiliated with the Philadelphiabased Federal Community Defender’s Of

fice (“FODO”). J began my concurrence

by noting that the source of the FODO's

funding for its questionable forays into

state court capital proceedings was not

clear, though it appeared that the Administrative Office of Federal Courts (herein-

99 ATLANTIC REPORTER, 3d SERIES

after “AO”) played a central role, and that

_ this federal role in state court capital liti-

gation was implemented. without the consultation or involvement..of this Court or

any other relevant Pennsylvania authority.

I noted that:

The federal courts—as well as other federal authorities and “the Pennsylvania

citizenry generally (who may not even

be aware of this unusual federal activity

in state courts)—may. not be aware of

just how global, strategic, and abusive

these forays have become. The federal

“judicial policy has raised issues that

should be known to, the federal authorities financing and authorizing the incursions; to Pennsylvania’s Senators and

House members; and to the taxpayers

who ultimately foot that bill. This is an

appropriate case to highlight those issues.

Commonwealth v. Spotz, 610 Pa, 17, 18

A.Bd 244, 380 (2011) (Castille, C.J, eoncurring, joined by MeCaffery, J.). I added

that I was writing to these global issues

involving the FCDO, in part, because the

cumulative effect of: the FCDO strategy

and agenda “has taken ‘a substantial and

unwarranted toll on-state courts.” - Jd.

Consideration of the post-decisional motious in this case, and intervening develop-

, matters involving

FCDO appearances in state court, have

confirmed and heightetied the grounded

concern with the conduct of the FCDO in

this case, and more importantly, with its

global agenda in Pennsylvania capital

eases, As I will detail below, the incremental insinuation of the FCDO into Pennsylvania capital cases has been remarkable

in its stealth and pervasiveness. The

FCDO has designated itself the de facto

State Capital Defender's Office, involving

iteelf not only in. virtually all capital

APPENDIX 009

COM, vy. SPOTZ

Pa. 867

Cite a9 99 A.3d 866 (Pa, 2014)

PCRA' litigation, but also in direct capital

appeals, and even, in one instance, as amicus curiae on behalf of a foreign nation,

Mexico, in support of a Mexican national

who murdered three people? No authority—state or federal—appointed the FCDO

to take on this statewide role, and no

anthority has approved the arrangement.

Pennsylvania does not have a statewide

capital prosecutor's office; and notably, in

a great many capital cases, the chief law

enforcement officer of the Commonwealth,

the Attorney General, echoed by county

prosectitors, has taken the position that

the FCDO should not be permitted to continue in Pennsylvania capital cases without

proving its specific federal authorization to

do so. :

in addition to comprehensively invalving

itself in state capital litigation without any

authorization, the FCDO has established

its monopoly through means known only to

itaelf. Remerkably, when directed by this

Court to provide simple and modest information confirming a claim that it has not

supported its private capital case agenda

in Pennsylvania with improperly diverted

federal funds, the FCDO response—the

response of these officers of the court, to

the Court with supervisory authority over

the practice of law in Pennsylvania-has

heen refusal and the removal of cases to

federal court, ensuring yet more FCDO

delay in those capital matters.

The circumstances and gbstructionist ef

fect of the FCDO’s silent takeover of the

capital PCRA defense function in Pennaylyania requires that Pennsylvania reassert

control over the litigation of state capital

matters. Death penalty opponents, such

as the FCDO, can then redirect their efforts to the political arena, where they

1. Post Conviction Relief Act, 42 PaCS.

§ 9541 et seq.

belong, This Court-has a responsibility

for the entire Pennsylvania judicial system, to ensure the delivery of swift, fair,

and evenhanded justice.in all cases. We

are not obliged to indulge or countenance a

group which manipulatés:and abuses the

judicial process in Pennsylvania in the

hopes of achieving a global political result

that it has failed to sécure through the

political process. :

This restoration of proper authority will

leave a void in the short run, But, the

void is an opportunity to return capital

ease advocacy to principled moorings.

The restoration will require that Pennsylvania authorities, including this Court, step

up and ensure the provision of the funding,

training and resources necessary to ensure

that capital defense representation in

Pennsylvania fully meets Sixth Amendment standards, with competent, properly

compensated and dedicated lawyers who

act zealously to advance the cause of their

“elients, but who act ethically as well, mind-

ful of their duties-to- the courts and the

justice system overall: believe the Commonwealth is up tothe ¢hallenge.

I do not in the least ‘criticize principled

representation of indigent capital defendants; such a principled endeavor repregents lawyering in the best tradition of the

par. But, as I explain below, the FCDO

continues to pursue an agenda beyond

mere zealous representation, one which

routinely pushes, and in frequent instanees, a8 here, far exceeds ethical boundaries,

FCDO lawyers appear in Pennsylvania

courts only as officers of this Court; consequently, they are answerable to the

Court. So long as the organization remains unauthorized to pursue ita global

agenda by any Pennsylvania authority, and

2. See Commonwealth'v: Padilla, No, 567 CAP,

discussed infra. The Court's decision affirming the judgment of sentence in Padilla is

reported at — Pa. 80 A.3d 1238 (2013).

wet,

APPENDIX 010

868 Pa.

so long as the FCDO refuses to he candid

with the Court about its authorization and

funding, it cannot be permitted to continue

its representation of capital’ defendants in

Pennsylvania, absent a specifie federal

court- order authorizing the specific endeavor in state court in an individual case.

Before proceeding to a discussion of the

specific Motions pending before me, and to

give a sense of the FCDO’s conduct as

viewed from the perspective of other

judges not affiliated with this Court, I

begin with but two examples. In Adbdul-

Saloam v. Beard, 16 F.Supp.8d 420, 2014

WL 1658208 (M.D.Pa,2014), the Honorable

John E. Jones, III, of the Middle District

of Pennsylvania, ended his nearly 200-

page memorandum denying habeas corpus

relief with the following observation: |

Nearly two decades have passed since

Officer Willis Cole was murdered. Over

nineteen years have elapsed since the

trial that resulted in Abdul-Salaam's

conviction. And yet this Memorandum

and the Order that follows will not end

the legal maneuvering that seeks to

overturn both his conviction and result

ing sentence of death at the hands of a

jury of his peers.

It was not until well after the founding of this nation that the federal writ of

habeas corpus was extended to prisoners

in state custody. But like a rolling

freight train, the use of the Great Writ

gathered speed in the ensuing decades.

It was adopted by the federal courts,

codified by Congress, revised, and to

some degree limited in certain respects.

But the case at bar amply demonstrates

that there is something grievously amiss

in both our laws and jurisprudence as

they relate to federal habeas practice.

For while we admire zealous advocacy

and deeply respect the mission and work

of the attorneys who have represented

99 ATLANTIC REPORTER, 3d SERIES

Abdul-Salaam in this matter, they are

at bottom gaming a system and erecting roadblocks in aid of a singular

goal—keeping Abdul-Salaam from being put to death. The result has been

the meandering and even bizarre course

this case has followed. Its time on our

docket has spanned nearly all of our

service as a federal judge—almost

twelve years. We havé given Abdul-

Salaam every courtesy and due process,

perhaps even beyond what the law af

fords. And yet forthe family of Willis

Cole, and indeed for Abdul-Salaam and

his family as well, there has been no

closure, Rather, they have endured a

legal process that ig at times as inscruta-

ble as it is incompréhensible. Moreover,

it will soon take’ another turn as the

Third Cireuit Court of Appeals reviews

our determination.

Id, at 811-12, “78 (emphasis supplied).

The PCRA trial court opinion in Commonwecdth v. Eichinger, 657 CAP, which

is a matter of public record in a capital

appeal pursued by the FCDO currently

pending before this Court, begins as follows: :

In this capital case; Appellant ... ap-

peals from an Order entered April 4,

2012, dismissing his [PCRA] _peti-

tion..,. Tf ever there were a criminal

deserving of the. death penalty it is John

Charles Eichinger®“His murders of

three women anda ‘three-year-old girl

“were carefully planned, executed and at-

tempts to conceal the murders were em-

ployed. There is no‘ doubt that Appellant is guilty of: these killings. There is

overwhelming evidence of his guilt, ineluding multiple admissions to police, ineriminating journal entries detailing the

murders written in Appellant's own

handwriting and DNA evidence.

We recognize that all criminal defendant have the right to zealous advocacy

APPENDIX 011

COM, v, SPOTZ

Pa 869

Citeas 99 A.3d 866 (Pa. 2014)

at all stages of their criminal proceedings. A lawyer has a sacred duty to

defend his or her client. Our codes of

professional responsibility additionally

call upon lawyers to serve as guardians

of the law, to play a vital role in the

preservation of society, and to adhere to

the highest standards of ethical and

moral conduct. Simply stated, we all

are called upon to promote respect for

the law, our profession, and to do public

good. Consistent with these guiding

principles, the tactics used in this case

require the Court to speak with candor,

This case has caused me to reasonably

question where the line exists between a

zealous defense and an agenda-driven

litigation strategy, such as the budgetbreaking resource-breaking strategy on

display in this case, Here, the cost to

the people and to the trial Court was

very high, This Court had to devote

twenty two full and partial days to hearings, To carry out the daily business of

thia Court visiting Senior Judges were

brought in, The District Attorney's capital litigation budget had to have been

impacted. With seemingly unlimited access to funding, the Federal Defender

came with two or three attorneys, and

usually two assistants. They flew in

witnesses from around the Country.

Additionally, they raised overlapping issues, issues that were previously litigated, and issues that were contrary to

3. The Motion to Withdraw Concurring Opinion was signed by Michael Wiseman, Esquire,

identifying himself as the supervisor responsible for the administration and operation of

the FCDO’s state capital litigation projects.

Attorney Wiseman represented that “[hle is

fully familiar with and aware of all facts asserted in this Motion,” In a later pleading

discussed fnfre, the Chief Defender, Leigh M.

Skipper, Esquire, responded to an adminis~

trative order the Court had specifically directed to Attorney Wiseman, Private counsel

Pennsylvania Supreme Court holdings

or otherwise lacked merit.

Opinion, Carpenter, J., July 25, 2012, at 1-

2.

In Part VI, infra, Twill address the

_FCDO’s gravely misguided claim that their

litigation strategies, including tactics like

those displayed in this. case, Abdul-Salaam, and Hichinger, “are required elements of the capital defense function.

Il. Background

The Court affirmed the denial of PCRA

relief in this ease and. today denies reargument, Disposition of reargument was delayed by ancillary Motions the FCDO§

filed with the reargument petition, and

further pleadings and circumstances occasioned by those Motions! This Opinion

and accompanying Order dispose of the

FCDO’s initial Motions, the Commonwealth’s reaponsive Motions, and FCDO

responses. .

A, Ancillary Post-Decisional Motions

and Per Curiam Administrative

Orders . .

Along with appellant’s Reargument Application, the FCDO filed @) a Motion for

my Recnsal on Reargument, (2) a Motion

for Withdrawal of: my Concurring Opinion,

and (8) corresponding “Motions for Leave

to File the Motions ds Post-Submission

Communications, The. FCDO also. requested that 1 refer the primary Motions

with the law firm Pepper Hamilton LLP filed

the FCDO's fina! pleadings.

4. The pendency of the ancillary motions has

not delayed the ultimate progression of appellant's case since the FCDO filed a federal

habeas corpus petition immediately after this

Court's Opinion was issued; that petition remains pending since the. FCDO moved to stay

the petition pending the outcome of appellant's collateral attack upon another one of

hts homicide convictions. See discussion in

Part VI, infra,

APPENDIX 012 ~

870 Pa.

to the full Court for decision, The FCDO

Motions focus solely upon objections to my

Concurring Opinion. The Commonwealth

responded with an Answer and Motion for

Sanctions.

The Court as a whole entered a per

curiam administrative Order on July 28,

2011, taking the FCDO Motions under advisement pending compliance with a directive contained in the Order, which was

necessary to resolve the Motions, The

Order noted that the Motion to Withdraw

Coneurring Opinion asserted as fact that I

was “incorrect” to suggest that the FCDO

may have misused federal funds by appearing in capital PCRA proceedings. In

fact, the-FCDO averred, it was in “full

compliance with applicable federal administrative rules and regulations and has a

separate source of funding to support” all

of its non-appointad litigation activities in

Pennsylvania state courts. The Order not-

_ed that the FODO did not “provide or cite

to those applicable rules and regulations,”

which the FODO invoked as proof that the

Concurring Opinion was “incorrect.” To

“properly determine the within Motions,”

the Court ordered as follows:

Michael Wiseman, Esquire, is hereby

directed, as an officer of this Court, to

file with the Office of the Prothonotary

of the Supreme Court of Pennsylvania a

verified “Statement of the FCDO's Involvement in Pennsylvania State Court

Litigation of Capital Cases,” which shall

include the following:

(1) an identification and explanation

of all federal authorizations and standards, ineluding statutory and regulatory authority, governing the FCDO's

conduct of capital litigation in Pennsylvania state courts;

in Applications to Withdraw Appearance in

other capital cases, Attorney Wiseman has

stated that he “lef his employ” with the

FCDO on August 26, 2011, and is engaging in

99 ATLANTIC REPORTER, 8d SERIES

(2) a listing of all Pennsylvania capital

defendants the FCDO is currently

representing, whether as primary

counsel or through formal or informal

assistance to Pennsylvania counsel of

record, in Pennsylvania state courts,

and whether by formal court appointment or not;

(8) an explanation of how the FCDO’s

representation came about in each

ease and, if instances of representation did not arise from formal court

appointment, an accounting of the authority under which the FCDO undertakes representation in capital cases

in Pennsylvania state courts in which

it is not court-appointed.

Order, 7/28/11. Attorney Wiseman was

directed to file the verified statement within thirty days, Madame.Justice Todd filed

a Dissenting Statement, which was joined

by Mr, Justice Baer,

Attorney ‘Wiseman. neither complied

with the order nor-sought reconsideration

or relief from it. Instead, on August 22,

2011, the Chief Federal Defender, Leigh

M. Skipper, Esquire, entered his appearance. Attorney Skipper also did not comply with the order or seek reconsideration

or relief, but instead filed a 3-page pleading styled ag “Appellant's Withdrawal " of

the FCDO ancillary motions (hereinafter

“Withdrawal pleading”). Attorney Skipper asserted, among other points, that,

“The FCDO represents capital defendants

in post-convietion proceedings in Pennsylvania state courts in order to satisfy the

exhaustion of state remedies requirement”

of the federal Aebeas statute, and 18

US.C. § 8006(AXe): “permits attorneys to

represent clients in ‘ancillary matters “ap.

propriate to the proceedings.’ ” The plead-

the private practice.of: law, See Commonwealth v. Sanchez,-605, CAP (motion filed

12/13/2012); Comitioriveatth v. Sepulveda,

554 CAP (motion filed 12/6/2012),

APPENDIX 013

COM. v. SPOTZ

Pa. 871

Cite aa 99 A.3d 966 (Pa. 2014)

ing made no reference to whether the

FCDO employed “a separate source of

funding to support” thase “ancillary” activities to exhaust federal claims. Withdrawal pleading, at 1-2 13. The Commonwealth

filed an Answer and requested a Rule to

Show Cause why the FCDO should not be

held in contempt for its non-compliance

with the July 28 Order. On October 3,

2011, the full Court entered a second administrative order which provided, in relevant part, as follows:

: Neither Attorney Wiseman nor the

FCDO sought reconsideration or a stay

of the {July 28] Order. But, neither has

the FCDO complied with the Order. Instead, on August 22, 2011, the Chief

Federal Defender of the FCDO, Leigh

M, Skipper, Esquire, entered his appearance and concomitantly filed the instant pleading, styled as a “Withdrawal”

of the two FCDO Motions the Court had

taken under advisement and already acted upon, The Chief Federal Defender

asserts that the Order “califed] for an

office-wide response” and thus he was

responding to the Order with this pleading, Notwithstanding the “Withdrawal”

styling, the pleading disputes the propriety of the per curiam Order, contains

other argument, and requests action by

the Court in the form of vacating our

July 28 Order as moot,

The Commonwealth has responded to

the “Withdrawal” pleading by requesting the Court to issue a Rule to Show

Cause upon the FCDO to explain why

presently it should not be held in gontempt for ita noncompliance with our

prior Order. The Commonwealth notes,

inter alia, that the primary stated reagon for the “Withdrawal” is to enable

Appellant to secure relief from his conviction in this Court so as to immediately proceed with federal habeas corpus

proceedings; however, the Commonwealth further notes, over two months

before filing the instant pleading, the

FCDO had already filed a 392-page habeas corpus petition in federal district

court on Appellant's behalf. Responding to the argument included in the

“Withdrawal,” the Commonwealth also

notes that the authority the FCDO cites

to support its activities in Pennsylvania

state capital matters, such as this one, in

fact does not authorize its activities; indeed, existing statutory and decisional

authority, including authority from the

U.S. Supreme Court, indicates that the

FCDO's state-court activities are not authorized. The . Commonwealth adds

that, [“ilt is immaterial whether counsel

deems withdrawal to be appropriate,” as

that decision is for the Court. Maoreover, the Commonwealth notes: that its

Motion for Sanctions, which was occasioned by the FCDO’s prior two Motions, remains pending and under advisement, and the Commonwealth is not

withdrawing that Motion; for that reason alone, the matter cannot be deemed

moot even if the FCDO were authorized

to unilaterally withdraw its pending Motions rather than respond to the Court’s

Order,

~ Upon consideration of the instant plead-

ings, it is hereby ORDERED that:

(1) The FODO’s: “Withdrawal” is construed by this ‘Court as an Application

for Relief seeking’ Leave to Withdraw

the FCDO’s prior “Motions, and the

Application so. construed i is taken under advisement.”

(2) Chief Federal Defender Leigh M,

Skipper, Esquire, is hereby directed,

as an officer of this Court, to file the

verified Statement outlined in this

Court’s July 28, 2011 Order.

(3) In light of Attorney Skipper's citation to 18 U.S.C. § 8006A(c) in aupport of his claim that the FCDO's

representation of Pennsylvania capital

a8 APPENDIX 014

872 Pa.

defendants in state post-conviction

proceedings is lawful, Attorney Skipper is also directed to produce a copy

of the federal court order appointing

the FCDO to represent Appellant, to

which the PCDO’s activities in Pennsylvania state court in this case are

“ancillary.”

(4) The verified Statement and federal court order of appointment shall be

filed within ten days of the date of this

Order. No tangential pleadings from

the FCDO are to be accepted by the

Prothonotary in advance of the filing

of the verified Statement.

(5) The Commonwealth's request for

a Rule to Show Cause why the FCDO

should not be held in contempt for its

non-compliance with our July 28, 2011

Order is taken under advisement, Attorney Skipper shall file a response to

the Commonwealth's request for a

Rule to Show Cause within ten days of

the filing of the verified Statement.

Order, 10/8/11, Justice Baer filed a Dissenting Statement, which was joined by

Justice Todd.

B. FCDO Response and Subsequent

Pleadings

Thereafter, Attormey Skipper filed a

‘Verified Statement in Response to the

Court’s Order of October 8, 2011” as well

as a “Response” to the Commonwealth's

Request for a Rule to Show Cause why the

FCDO should not be held in contempt.

1. Verified Statement

The Verified Statement first addresses

the authority of the FCDO to appear in

capital cases in state court. Contrary to

the FCDO claim in the Withdrawal pleading, Attorney Skipper no longer verifies

that the FCDO's activities in state court

are authorized by federal law as activities

ancillary to the federal habeas carpus exhaustion requirement. Instead, Attorney

99 ATLANTIC REPORTER, 3d SERIES

Skipper concedes that the FCDO is authorized to represent state and federal

death row inmates in federal court only

pursuant to 18 U.S.C. § 8599(a)(2), which

governs litigation of federal habeas corpus

petitions filed under 28 U.S.C, § 2254

(state prisoners) and §'2255 (federal prisoners). Attorney Skipper next notes the

federal habeas requirement that state pri¢

oners fairly exhaust their federal claims in

state court before pursuing them in federal

court, Attorney Skipper states that 18

U.S.C. §§ 8006 and 3599 empower feder-

‘al courts to authorize’ appointed federal

habeas counsel to represent capital defendents in state court, Attorney Skipper

quotes Section $599, which states that appointed federal habeas counsel shall represent the defendant at “every subsequent

stage of available judicial proceedings.”

Id. § 3599(e). The key statutory qualifier

is that the activity. be “subsequent” to

federal Aaheas review,. and indeed, after

quoting Section 3599(e), Attorney Skipper

cites Harbison v. Bell, 556 U.S, 180, 129

S.Ct, 1481, 173 L.Bd.2d 847 (2009), which

held that Section 3599 authorizes’ appointed federal habeas counsel to represent

state capital defendants in post-federal habens state clemency ‘review, Attorney

Skipper notes that, in the course of its

clemency discuasion, the Harbison Court

added a footnote observing that federal

courts may determine, on a case by case

basis, that “it is appropriate for federal

counsel to exhaust a claim in the course of

her federal representation.” Id, at 1489 n,

7, Attorney Skipper cites no federal authority for the proposition conveyed in the

Withdrawal pleading, ie, that federal habeas counsel is authorized, by virtue of

that appointment, to proceed to PCRA litigation and comprehensively exhaust claims

in state court before pursuing federal habeas relief.

APPENDIX 015

COM. v. SPOTZ

Pa, 873

Cite as 99 Ad 866 (Pa, 2014)

Attorney Skipper then adverts to—but

does not provide—a “policy statement” of

“the Judicial Conference Committee on

Defender Services” predating Harbison by

more than a decade which, he says, would

approve of federal defender organizations

exhausting state remedies for federal

claims, “where authorized by the presiding

federal judge.” Attorney Skipper doea not

identify the authority under which this

Committee operated, its composition, or

whether the Committee's opinion had, or

now has, actual force and effect; nor does

he state whether the policy statement comprises the “applicable federal administrative rules and regulations” to which Attorney Wiseman referred when he declared

that the FCDO was in “full compliance”

and that I was incorrect to suggest otherwise. .

Turning to the other statutory provision

invoked to support the FCDO’s state court

capital activities, Attorney Skipper notes

that 18 U.S.C. § 3006(c) authorizes appointed federal capital habeas counsel to

represent capital clients in state court matters “ancillary” to federal habeas proceedinge—but again, only when specifically authorized to do so by the federal judge

presiding over an active habeas petition,

Attorney Skipper then argues that the

restrictions in the federal statutory construct do not apply when the FCDO is

“sing non-grant [federal grant] funds” to

finance its activities. Attorney Skipper

states that nothing in federal legislation or

AO “policies” prohibits FCDO lawyers

from appearing aa private lawyers in state

court, so long as federal grant money does

not finance that FCDO agenda. Attorney

Skipper does not address whether the

FCDO discloses to Pennsylvania courts

when it is acting pursuant to the FCDO’s

private budget and agenda, rather than as

counsel approved for a limited purpose by

a federal judge, supported by federal taxpayer funds,

Further explaining the supposed publice/private hybrid status of the FCDO, Attorney Skipper says the FODO receives

private contributions and grants to engage

in non-appointed activities through its

“Pennsylvania Capital Representation Project.” Attorney Skipper states that the

AO is aware of the FCDO's “nonfederal

fund” activities, Attorney Skipper attaches no supporting documentation, nor

does he provide an explanation of the manner in which the FCDO'S state court activity in this case—ineluding the commitment

‘of six FCDO lawyers -and numerous ex-

perts and investigators below, and preperation of the abusive brief filed on appeal—was funded. . In; addition, he does

not suggest the amount: of private funding

available to support the FCDO’s private

capital agenda in state capital proceedings.

And, he does not explain the mechanics of

the hybrid operation: eg. are FCDO staff

salaried or do they bill (publicly and privately) by the hour; are benefits such as

health care, pensions, and leave time allo-

_eated between public and private funding,

etc. Nor, again, does Attorney Skipper

assert that the construct he describes repregents the “applicable federal administrative rules and regulations” Attorney Wiseman referred to in asserting the FCDO's

full compliance.

Attorney Skipper next states that the

FCDO appears in'state-court capital proceedings under a “range of circumstances.”

In some cases, he says, a federal court has

authorized the activity; no examples or

copies of such federal court orders are

provided. In other cases, he ‘says, the

FCDO is appointed by a federal court for

federal habeas purposes and then determines to use nonfedei'al funds to appear

privately in state’ court. to exhaust state

court remedies in advance of federal re-

APPENDIX 016

874 Pa.

view, In other cases, he says, the FODO

makes cost-allocations between private and

federal taxpayer funding. Attorney Skipper further declares that in some cases,

the FCDO—using exclusively nonfederal

funds—appears in state court to “protect”

the rights of Pennsylvania capital prisoners who, in its opinion, are likely to be

entitled to FCDO representation if the

case ever proceeded to federal habeas review. Attorney Skipper adds that, in some

instances, the FCDO has been appointed

to represent capital PCRA petitioners in

state court; he does not state under what

authority such appointments were secured;

in any event, these activities likewise must

fall under the FCDO's private agenda,

since it would be inappropriate to use federal funds for the endeavor.

Following this summary, Attorney Skipper represents that “(t]he FCDO helieves

we have properly entered appearances” in

the PORA cases he lists in an accompanying summary of then-open Pennsylvania

capital cases in which the FCDO was involved. Moving from the question of entry

of appearances to the use of federal funds,

Attorney Shipper continues that the

FCDO, in conjunction with the AO, “takes

steps to ensure that the costs of litigation

are properly allocated between federal and

other funding sources” and, he declares, as

of the time of the Verified Statement at

least, “such allocations are proper.” No

_ definition of what are deemed to be “costs

of litigation” is offered. Nor is any documentation offered in support of this averment, so that its accuracy may be measured here, in the context of the FCDO’s

allegation that my Concurring Opinion

must be withdrawn because, inter alia, it

““ncorrectly” suggested that the FCDO

misused federal funds to support its private state court capital agenda.

Notably, however, Attorney Skipper

states that, to discharge his ethical duties,

99 ATLANTIC REPORTER, 3d SERIES

he now “corrects” Attorney Wiseman’s absolutist, aasertion of “the FCDO's ‘full’

compliance with applicable federal administrative rules and regulations.” Attorney

Skipper explains that internal reviews of

cases “have disclosed situations in the past

in which prior allocations of casts were not

in full compliance with. administrative rules

and regulations.” Attorney Skipper does

not identify these cases where the FCDO

violated federal funding restrictions, as

measured by the “administrative rules and

regulations” he doesnot provide and within a system of cost: allocation that is not

described; nor does ‘he explain how pervasive and longstanding the violations were

or whether the extraordinary commitment

of resources in thig case represented one

such violation.

Attorney Skipper next advises that the

FCDO, along with the AO, is “taking further measures and adding additional

safeguards” to ensure compliance with

the undisclosed federal rules and regulations. No specifics or. supporting documentation are offered.to permit an assessment of the FCDO’s prior claim of

“ull compliance,” its current position that

it was formerly non-compliant, but now is

compliant, or its “assurance that “new

measures” will prevent -a continuation or

recurrence of the. prior violations. Nor,

significantly, are . any. specifies provided

that would offer the:Court any assurance

that, in permitting the FCDO to litigate

in Pennsylvania courts where it has not

been specifically authorized by federal

court order, Pennsylvania courts are not

facilitating a continuing, improper diversion of federal taxpayer money to support the FCDO’s private capital case

agenda, In this regard, it is notable that

the FCDO never indicates in its entries

of appearance and its pleadings in Pennsylvania courts whether it is appearing in

its capacity as purely-privately-funded

counsel, or in its capacity as the federal-

APPENDIX 017

COM. v, SPOTZ

Pa, 875

Cite as 99 A.3d 866 (Pa. 2014)

ly-financed “federal defender.” The

FCDO affiliation by which FCDO lawyers routinely identify themselves gives

the impression that the organization’s appearances in state court are sanctioned

and supported by the federal government.

The Verified Statement next addresses

this Court’s directive to identify the Pennaylvania capital defendants the FCDO waa

then representing or assisting, whether

the involvement was by court appointment,

and how and under what authority the

FCDO was involved if not by court appointment. Attorney Skipper first seems

to suggest that Congress's restrictions on

appointed federal habeas counsel's appearances in state court does not prevent the

FCDO from diverting federal funds to investigate prospective federal claims and

provide the fruit of that labor to “clients”

who may then present the claims in state

court. Parenthetically, this is a strange

assertion given Attorney Skipper’s prior

averments. Under Attorney Skipper’s

own account, federal funds may only be

employed in state court with specific federal court authorization. Moreover, the

FCDO has no “elient” for purposes of federal grant expenditures except when it has

been appointed to actively pursue federal

habeas corpus relief, which can only occur

after the defendant's state court remedies

have been exhausted: that is the statutory

gine qua non for court-authorized “ancillary” or “subsequent” state court litigation.

Attorney Skipper identifies no statute that

permits the diversion of federal tex dollars

for advance shadow activity in support of a

non-client’s state court capital pleadings.

To the extent the FCDO continues to use

federal funding for this sort of activity, the

“further measures’ and “additional safeguards” Attorney Skipper adverts to do

not address the problem,

Attorney Skipper also provides a chart

with a list of cases—cases in addition to

the untold number of. “fruits of its labor”

cases-in which the FCDO.was then providing representation :in Pennsylvania state

courts to capital defendants, or was consulting with lawyers actually appointed or

reteined for the purpose, The chart also

lists whether the FCDO was appointed

and by what court, and if not, how the

FCDO became involved.

The chart is a remarkable snapshot of

just how thoroughly the FCDO has involved itself in Pennsylvania state capitel

litigation. According to the chart, FCDO

lawyers were then actively providing representation in Pennsylvania state court litigation in 108 relevant cases, 97 of which

were capital. (From other notations, it

appears that the 11 noncapital matters involve defendants who-have or had separate

capital convictions; presumably, the litigation was pursued in the hope of generating

collateral grounds ‘to -attack the capital

convictions.) rh

As a preliminary ‘side, the increasing

frequency with which this Court has seen

FCDO involvement ‘in Pennsylvania state

court capital matters of course was already

suspicious. Moreover, it became difficult

to ignore the FCDO's abusive litigation

tactics in individual cases, See Spotz, 18

A3d at 840-42, 844-45, 348 (Castille, C.J.

concurring, joined by McCaffery, J.) (discussing, inter alia, Commonwealth v. Abdul-Salaam, 606 Pa, 214, 996 A2d 482

(2010); Commonwealth 'v. Bracey, 604 Pa.

459, 986 A.2Qd 128 (2009); and Commonwealth v. Banks, Nos. 461, 505 and 578

CAP (eries of per curiam orders in response to FCDO delays’ and obstruction).

But, I admit that Thad little idea just how

pervasive the FCDO' presence, and the

consequent potential for its litigation abus-

£% had become. It is starkly apparent,

from the FCDO’s. chart and my own re-

APPENDIX 018

876 Pa.

view of Pennsylvania capital cases, that a

group of federally-financed “private” lawyers has managed to insinuate themselves

into virtually every Pennsylvania. capital

case where they can manage the intrusion.

Indeed, the FCDO haa proven adept at

inserting itself into cases even where the

defendant has made clear that he does not

want FCDO assistance, or to further the

FCDO agenda. And, as my discussion below demonstrates, the FCDO’s effective

self-appointment as a sort of statewide defender in capital PCRA matters has been

achieved without the input, much lesa the

approval, of any relevant Pennsylvania authority, The propriety of the unapproved

arrangement is beyond dubious, given the

FCDO’s demonstrated obstructionist _private agenda.

The FCDO chart identifies 28 cases.

from the complement of 108 where FCDO

involvement resulted from simply entering

its appearance, without appointment or anthorization by any court, state or federal.é

To be lawful, the FCDO’s activity in all 28

of these cases must be supported solely by

nonfederal funds.

The FCDO chart lists another 63

cases—including this one—as instances

where its involvement is by “entry of appearance and appointed by federal court.” ?

Attorney Skipper does not explain the conjunctive notation, He also does not identify which—if any—of these federal court

appointments authorized the FCDO to use

federal grant funds to litigate PCRA petitions in state court. The specifics of the

6, In3 of these 28 cases, the FCDO states that

it was appointed by the federal court in an

unrelated noncapital case.

7. The FCDO identifies 7 additional cases

where it was appointed by a Pennsylvania

trial court, including one as standby counsel,

In 3 of the 7 cases, the FCDO states that it

was also appointed by a federal court; in a

fourth case, the FCDO states that it was ap-

99 ATLANTIC REPORTER, 3d SERIES

appointment orders, and the federal habeas status of the cases, would determine

whether the activity was authorized and

whether federal grant money properly

may be employed.

Attorney Skipper does not specifically

addvess whether the FCDO’s pursuit of

appellants PCRA petition and appeal was

supported exclusively by.nonfederal funds.

FCDO attorneys here identified themselves exclusively. by reference to the

FCDO; no suggestion: was made.that they

were appearing in, a: private “volunteer”

capacity, for example; as part of the Philadelphia Defender Association’s “Capital

Representation Project.” As I explained

in my Concurring Opinio, the FCDO’s

commitment of resources in this case was

vast, including the: deployment of half a

dozen FCDO lawyers, numerous experts,

investigators, paralegals, etc. in the PCRA

court. That commitment of resources was

followed by the FCDO’s Jen: d_abusive brief in this Court, which was filed

only after significant delays occasioned by

multiple extension requests detailing the

enormity of the FCDO's task, and only

after flouting this Court's briefing rules.

Notably, in the ‘extension requests,

FCDO Attorney Robert Dunham, Esquire,

also made reference to his other capital

ease responsibilities as an FCDO lawyer,

drawing no distinction’ between court-authorized litigation’ and’appearances pursuant to the FCDO’s- private agenda.

Among the responsibilities related was Attorney Dunham's préparation of an amicus

pointed as counsel {ordnext friend, Respect~

ing the 3 cases where-the PCDO says there

was a concurrent federal court appointment,

presumably the federal court did not unlawfully appoint the 'FCDO. to pursue an initial

PCRA petition in advance of habeas review,

See discussion infra. Thus, in all seven of

these cases as well, the FCDO cannot divert

federal funds to pursue its private agenda.

APPENDIX 019

COM, v, SPOTZ

Pa, 877

Clte as 99 A3d 866 (Pa, 2014)

curiae brief on behalf of the Government

of Mexico in support of a Pennsylvania

capital defendant. See Commanwealth v.

Padilla, 667 CAP, later decision reported

at —— Pa, ——, 80 A.3d 1288 (2018), cert.

denied, — U.S. —, 184 S.Ct, 2725, —

L.Ed2Zd — (014). Presumably, the

FCDO"s provision of lawyering services on

behalf of foreign nations to support their

citizens who commit capital murders in

Pennsylvania is supported by its private

funding stream or by the Mexican government, Also, presumably, the AO was

aware of and approved of this “nonfederal

fund” activity, which caused delays in other Pennsylvania capital cases the FCDO

pursued strictly as part of its private agenda,

Notably, the Padilla case is not listed on

Attorney Skipper’s chart of cases where

the FCDO was involved. That is because,

not coincidentally, Attorney Dunham withdrew his appearance in Padilla the very

day before Attorney Skipper filed the Verified Statement. Attorney Dunham's

praecipe in Padilla simply stated: “Kindly

withdraw my -previously entered appearanea as counsel of record for Amicus Curiae, the United Mexican States, in the

above-captioned matter and substitute

Mare Bookman, who has entered his appearance on this date, as counsel of record

for the United Mexican States.” No explanation is given for the substitution or

its timing; perhaps the Padilla case was

one of the (unidentified) cases where the

FCDO’s allocation of costs was “not in full

compliance with administrative rules and

regulations.” Attorney Bookman’s entry

of appearance for Mexico identifies him as

affiliated with the “Atlantic Center for

Capital Representation.” The website for

the ACCR notes that, in fact, “Prior to

becoming the Director of ACCR, Mare

Bookman was a public defender for 27

years and worked in the Homicide Unit of

the Defender Association of Philadelphia

since its inception in 1998.” The FCDO, of

course, operates under the umbrella of the

Defender Association of Philadelphia,

which apparently is the ultimate mastermind of this overall-capital case agenda.

What is most troubling is that, although

Attorney Skipper does not state the fact

directly, the necessary: implication of the

averments in the Verified. "Statement is

that federal tax dollars in fact financed the

FCDO's extensive and’ gbysive_litigation

activities in this case, The Court's October 8, 2011 per curiam order stated that,

“In light of Attorney Skipper’s citation to

18 U.S.C. § 3006A(c) in support of his

claim that the FCDO’s representation of

Pennsylvania capital defendants in state

post-conviction proceedings is lawful, Attorney Skipper is also directed to produce

a. copy of the federal court order appointing the FCDO to represent Appellant, to

which the FCDO's activities in Pennsylvania state court in this case are ‘ancillary.’”

Attorney Skipper's response does not state

that the FCDO’s activities here were supported solely by the FCDO's private resources, and were not authorized federal

expenditures ancillary, to a federal court

appointment, Instead, Attorney Skipper

advised that he was complying with our

directive hy attaching the relevant “federal

court appointment orders.”

The two attached orders, however, reveal that the FCDO. was never authorized

to prosecute appellant's PCRA petition

and appeal with federal funds, as ancillary

to its appointment for federal habeas purposes. The orders were issued by the

Honorable James M. Munley of the U.S,

District Court for the Middle District of

Pennsylvania, The first order, dated April

12, 2002, appointed the FCDO in connection with a stay of execution and directed

the FCDO to file'a federal habeas corpus

petition within 120 days, The second order, dated May 10, 2006, was in connection

APPENDIX 020

878 Fa.

with a second stay of execution; the order

appointed the FCDO “to represent Petitloner in his to-be-filed habeas corpus petition," and the order directed that the petition be filed within 180 days. Neither

order authorized the FCDOQ to litigate an

initial PCRA petition on appellant's behalf,

much less to do so by using federal funds.

On November 27, 2002, Judge Munley denied the FCDO request to hold appellant's

federal habeas proceedings in abeyance

while the FCDO pursued PCRA relief;

dismissed the federal habeas petition; and

directed the clerk to close the case,

‘A week later, on December 4, 2002, the

FCDO filed appellant's PCRA petition, a

2%5-page “initial” pleading, representing

an extensive prior commitment of FCDO

resources, all without federal court authorization. The representation that the

FCDO’s PCRA agenda here was author

ized as ancillary to Judge Munley’s orders—a representation that conveys that

the litigation was legitimately financed

with federal tax dollars—is contradicted by

the attached orders themselves.

The next question, in the context, of the

FCDO motion claiming that my Concurring Opinion must be withdrawn because it

was “incorrect” to question whether the

FCDO’s private agenda is supported by a

misuse of federal taxpayer dollars, is

whether the apparent diversion of funds

here was an anomaly among the 63 cases

where the FCDO says ita state capital case

activity was by entry of appearance and

federal court appointment. Some of the 68

eases involve serial PCRA petitions, and it

is possible that a federal judge authorized

the FCDO to exhaust a discrete new claim

in a serial PCRA petition, pursuant to-

footnote 7 of Harbison v. Bell. The FCDO

does not identify which of the 63 cases

involve serial PCRA petitions and which, if

any, involve specific federal court authorization to litigate a serial PCRA. petition,

99 ATLANTIC REPORTER, 3d SERIES

In fact, my review reveals that 50 of the

cases involve initial PCRA petitions, and

at least 8 of the 13 remaining cases, which

appear to be serial PCRA matters, involve

defendants the FCDO ‘previously represented, or attempted to represent, in first

PCRA petitions (Commonwealth v. Eman

uel Lester aka Ali; Commonwealth v, Antoine Ligons; and Commonwealth u. Ronald Puksar), Thus, at least 53 of these 63

eases involve FCDO litigation of initial

PCRA petitions in advanes of federal habeas review. Given the federal statutory

acheme: and Harbison v. Bell—as the

FCDO's pleading here itself describes

those restrictions—the FCDO’s pursuit of

its private agenda in the 58 cases cannot

lawfully be supported by the diveraion of a

penny of federal funds.

But, the FCDO's averments concerning

its authorization in this case suggest that it

in fact has routinely’ diverted significant

federal resources to. support its private

agenda, Again, the FCDO did not re--

spond to this Court's order by claiming

that its PCRA activitiés here were supported solely by its private funds Instead,

the FCDO represents—incorrectly—that

its abusive activities were “authorized” as

“ancillary” to a federal court appointment.

The 53 first-PCRA petition capital cases

identified by the FCDO no doubt present

like cireumstances, i, the FCDO federal

appointment was ta file a federal habeas

petition, with no authorization to improperly use federal tax dollars to pursue initial

PCRA petitions in state courts. In short,

the Verified ‘Statement has neither

elaimed, nor documentéd, that the FCDO’s

actual litigation of these. capital PCRA

matters was supported solely by private

funds, 5

While these ancillary matters have been

pending, the Court hag'directed the FCDO

to produce its federal court orders of appointment in a number of capital PCRA

APPENDIX 021

COM, v, SPOTZ Pa.

879

Cite an 99 A3d 866 (Pa, 2014)

matters, including first-PCRA petition

cases the FCDO chart identifies as instances where it is acting pursuant to federal court appointment. The FCDO responses and/or federal orders produced

{and the motions generating the orders)

corroborate that either no such order exjsta, ox if there is an appointment order,

the appointment is for federal habeas litigation only, and not for litigation of PCRA

petitions. E.g. Commonwealth vu. Johnson, 582 CAP; Commonwealth v. Mitchell,

617 CAP; Commonwealth v. Tharp, 637

CAP; Commonwealth v. Davido, 688 CAP;

Commonwealth v. Montalvo, 689 CAP;

Commonwealth v: Powell, 641 CAP. See

also Commonwealth v, Sepulveda, 618 Pa,

262, 55 A.Sd 1108, 1151 (2012) (noting that

FCDO was appointed by federal court only

to prepare federal habeas petition).®

The federal PACER system confirms

that FCDO appointments in Pennsylvania

capital cases typically follow the plain congressiondl restriction and the even plainer

holding in Harbison v, Bell, in that they

are for purposes of federal habeas litigation only; the orders, like Judge Munley’s,

do not authorize the FCDO to litigate

PCRA petitions using federal grant funds.

E.g., Commonwealth v. Busamet, 623 CAP

8. In one case, Tharp, the district court declared that “[clounsel is directed to forthwith

exhaust all of Petitioner's claims in the apprapriate state courts of Pennsylvania.” Tharp v.

Beard et al, Civil Action No, 04-1284

(W.D,Pa.) (order dated April 14, 2005), The

appointment order, however, was still only

for purposes of filing a federal habeas petition, and the court's later dismissal of the

habeas action without prejudice stated that

the dismissal rendered the prior order (including the FCDO appointment) “null and of

no further force and effect.” The order produced in Commonwealth v, Solana, 647 & 648

CAP, granted the FCDO's motion to stay federal habeas proceedings to permit state court

exhaustion, and directed counsel to exhaust

claims, But, this order likewise did not authorize the FCDO to misuse federal funds, in

order to exhaust claims.

(federal appointment order entered

1/20/2004); Commonwealth v. Walker, 480

CAP (federal appointment order entered

3/8/2011—notably while Walker's PCRA

appeal, litigated by four FCDO lawyers,

was pending in state court; in appointing

¥CDO, court notes FCDO's representation

that its lawyers “have represented Petitioner for many years”). The appointment order the FCDO: produced in another

case, Commonwealth ». Weiss, 655 CAP, is

not an appointment order at, all, but an

order staying federal habeas review pending exhaustion of state. remedies.!°

The federal court appointment orders in

Mitchell and Davido. are accompanied by

an FGDO acknowledgment that it was appointed only for federal habeas, and not to

pursue a PCRA petition, The FCDO in

each case then notes that it entered its

PCRA appearance pursuant to its private

agenda: “{ele part of a nonprofit organization providing defender services, the

FCDO may provide a broader array of

defender services than those authorized by

a federal appointment’as.the FCDO's resourees permit.” Accord Commonwealth

u, Terrance Williams, 673, 668, and 669

CAP." This general statement does not

9. See Commonwealth v. Walker, 613 Pa, 601,

36 A.3d 1, 18 n, 2 (2011) (Castille, C.5., concurring) (noting FCDO involvement),

10, The Weiss order states that the “Petitioner (not the FCDO,-even assuming a prior

order appointed the FCDO) was to file in state

court to exhaust his-claims. The order did

not appoint the FCDO or authorize it to misuse federal funds to litigate the PCRA petition,

Weiss v, Beard et al., Civil Action No. 02~1566

(W.D.Pa.) (order dated $/13/03).

li, The Terrance Williams case does not appear on Attorney Skipper’s list of cases, as the

most recent round of FCDO filings there postdate the submission of the Verified Statement.

The case is notable because the FCDO’s current federal court appointment, by the Honorable Michael M, Baylson, was only for pur-

Me APPENDIX 022

880 Pa.

specifically claim that those “resources”

derive strictly from the FCDO’s private

funding—although that is certainly the impression conveyed by the reference to the

FCDO's nonprofit status, and its ability to

provide a “broader array” of services than

those actually authorized by Congress,

Notably, this “broader array” position is

in tension with Attorney Skipper’s stance

in this case—where the question of the

FODO’s authority is directly at issue, and

the Chief Defender entered his appearance

so as to provide an “office-wide response.”

Attorney Skipper has stated that the

FCDO's extensive PCRA litigation activities here were “ancillary” to a federal

court order that, in fact, did not appoint or

authorize the FCDO to conduct any ancillary activities, much less to redirect federal grant funds. Although the FCDO’s

overall position is elusive and inconsistent,

its core position, and its actual conduct,

suggests its belief that it is free to redirect

federal tax dollars to its private state court

agenda whenever it has, or anticipates, a

federal court appointment for purposes of

federal habeas review. That position,

which would apply to all 53 cases in this

class, contradicts what the FCDO has admitted ave the plain limitations in the federal statutory scheme and Harbison v.

Bell, ‘

It may be that Attorney Skipper, like

former FCDO Attorney Wiseman, has

made an error; that he realizes that the

PCRA litigation in this case could not

properly be supported with federal funds;

that he further realizes that all 58 of the

identified first petition capital PCRA matters involving federal court “appointments” can only be privately funded; and

that he meant to convey that, in fact, the

FCDO's private activities and agenda in

poses of preparing a state clemency petition,

Williams v. Beard et al, Civil Action No.

2005-3486 (E.D.Pa) (order — entered

99 ATLANTIC REPORTER, 3d SERIES

every first petition capital PCRA matter

have been funded exclusively with private

resources. But, that is not what he has

represented in his Verified Statement,

and presumably, he did not so represent

because he cannot truthfully state that it is

80.

Obviously, even aside from Attorney

Skipper’s averments, it-is highly unlikely ~

that the FCDO has subsidized its massive

private agenda in capital PCRA cases with

purely private funds. It has been reported that the FCDO operates under a federal grant of some $16-17 million per year.

It is difficult to believe that the FCDO haa

an annual private funding stream anywhere near that size, or indeed a funding

stream sufficient to support the extensive

litigation in this case alone. By the

FCDO's own reckoning, it would need private resources sufficient to litigate the

other 62 first PCRA matters in which it

was involved by appearance and supposed

federal court “appointment,” the 28 matters where it simply entered an appearance, the 7 additional cases where appointments were made by ‘state court. judges,

its shadow assistance in the “fruits of its

labor” cases, and its activities on behalf of

foreign governments ‘in support of their

citizens who commit murder in Pennsylvania, And, when the FCDO enters a case,

it deploys teams of investigators, parale- -

gals, lawyers and experts, and reams of

paper, pleadings, amendments, etc. Notably, on May 15, 2011,’ immediately after

the Court's decision in this appeal, the

Philadelphia Inguirer reported that David

Rudovsky, Esquire, the President of the

Philadelphia Defender’ Association, which

oversees the FCDO, took the same position Attorney Skipper initially did in his

Withdrawal pleading: i¢,, that the FCDO

8/24/2012), Nevertheless, the FCDO proceeded to file a serial PCRA petition, which is

currently on appeal to this Court.

APPENDIX 023

COM. v. SPOTZ

Pa. 881

Cite as 99 A.3d 866 (Pa. 2014)

diverts federal grant money to support

most of its work in capital PCRA litigation, claiming that federal law allows the

diversion in advance of federal habeas review, so aa to exhaust claims, The same

article indicated that the FCDO’s private

funding stream was a modest $130,000."

Asked for an explanation of authorization following Attorney Wiseman’s allegation, however, the FCDO has now acknowledged that it may lawfully use

federal grant funds to support state

capital litigation only when specifically

approved by a federal judge, and that

power exists in a federal judge only on

matters ancillary or subsequent to appointment to pursue federal habeas corpus petitions, The statutory authority

cited by both parties here, as well as

the decision in Harbison v. Bell, corroborates that these in fact are the controlling congressional restrictions on the use

of federal funds, There is, in short, 2

disconnection between what the FCDO

properly can do with its federal funding,

as federal law provides plain as day and

the FCDO itself understands it, and

what the FCDO actually has done and

continues to do with that funding in

pursuit of its private agenda, as the

FCDO tells it. In this case and all

cases where the FCDO's capital PCRA

litigation activities were not approved by

a federal court in a federal habeas pro-~

ceeding to which the PCRA litigation

was properly ancillary or subsequent—

and no first PCRA petition can so qualify—any diversion of federal money to

12. I recognize that a reported interview with

an FCDO director is hardly definitive evidence; [ cite the reference because it squares

with one of the FCDO’s (admittedly changing)

positions here, and because, in subsequent

proceedings in Pennsylvania state cases, the

FCDO has refused to explain Its actual funding and deployment of federal resources, an¢

has removed those inquiries to federal court.

finance the FOCDO's private agenda

would appear te violate federal law.4

While these Motions have been pending,

the FCDO has been given multiple additional opportunities to discharge ita duty of

candor to Pennsylvania courts concerning

the propriety of its extensive private capital case agenda, by which it has secretly

managed to assume a monopoly role in

capital PORA defense. As I explain below, the organization ultimately haa refused to do so, The organization's stance

reflects its core political orientation: it

insinuates itself into the role of de facto

statewide defender, in capital cases, claiming to this Court that if is acting solely as

a privately-funded eritity which need not

answer to any Pennsylvania authority, and

then claims, when put to the proof, that it

is effectively a “federal-officer” and cannot

be asked for an accounting, The FCDO’s

contemptuous responses also shed light

upon the instant Motions, and in particular, the FCDO's shifting accounts of its

activity, authority, and. funding. See discussion at subsection (5), infra.

2. FCDO Response to Commonwealth's

Request for a Rule to Show Cause

The Court’s order of October 3, 2011,

quoted earlier, sets forth the Commonwealth’s position on its request for a rule

to show cause why the FCDO should not

be held in contempt, for its non-compliance

with the order of July 28." Attorney Skipper responds by stating that the FCDO's

decision not to comply but instead to file

its “Withdrawal” pleading wes reasonable

See discussion of Commonwealth v. Mitchell,

617 CAP, infra.

13. A second FCDO chart lists anather 21

Pennsylvania capital cases where it is currently providing consultation services. These services likewise must be supported by purely

private funding,

mas APPENDIX 024

882 Pa.

and made in good faith, and was not in

contempt of this Court. I will discuss

These pleadings, as necessary, infra,

8, Further Pleadings

The Commonwealth responded to the

FCDO’s Verified Statement with a Request for Leave to file a Response, to

explain why the Verified Statement is nonresponsive, The Commonwealth also filed

a Response to the FCDO’s Answer to the

Motion for Sanctions. Counsel with the

law firm Pepper Hamilton LLP then entered an appearance as counsel for the

FCDO and Attorney Skipper, and on November 29, 2011, filed: (1) a Motion to

Strike the Commonwealth’s Response to

the Answer to the Motion for Sanctions;

and (2) a Reply to the Commonwealth's

Request for Leave to Respond to the Verified Statement. None of these pleadings

are necessary to a proper decision of the

primary matters; accordingly, I will deny

the Commonwealth’s request for leave to

vespond to the Verified Statement, and I

will not consider ita response to the FCDO

Answer to the Motion for Sanctions. Nor

will I consider the FCDO’s two responsive

pleadings. Finally, I will not burden the

Court with a referral of these tangential

motions.

4, Tangential Matter at 187 EM 2011,

removed to federal court by FCDO

A further complication arose in November of 2011, when the District Attorney of

Philadelphia County filed a petition seeking exercise of the Court’s King's Bench

jurisdiction to more broadly consider the

* propriety of the FODO’s activities in Pennsylvania state courts. See In Re: Appear

ance of Federal FCDO In State Criminal

Proceedings, 157 EM 2011. The Petition

alleged that the FCDO’s appearances in

Pennsylvania capital proceedings were illegal; that the Court should enforce federal

law as well as its exclusive power to supervise the practice of law and the conduct of

99 ATLANTIC REPORTER, 3d SERIES.

the courts in the Unified Judicial System;

and that the Court should bar the FCDO

from participation in’ state criminal proceedings, except where the FCDO has specifically been authorized to so litigate by a

federal court order, The pleading included an extensive discussion of federal law,

and offered examples of. FCDO conduct in

Pennsylvania cases that, the District Attorney claimed, corroborated the concerns

with the FCDO agenda that were addressed in my Concurring Opinion. The

FOCDO requested and was granted an extension of time to respond, noting it had

retained outside counsel.

Rather than provide ‘the response, on

December 8, 2011, the FCDO filed a single-paragraph “Notice of Filing of Notice

of Removal,” relating that the FCDO that

day had removed the King’s Hench matter

to the U.S, District Court for the Hastern

District of Pennsylvania, The attached

federal notice declared that the Commonwealth’s petition “asserts claims against

[the FCDO] based on-and arising under

federal law.” The federal notice did not

acknowledge the Commonwealth’s supervisory state law issue involving the practice

of law. Sue yet

Although neither party contemporaneously informed the Court of the development, on December 14;-2011, the Commonwealth filed a notice of dismissal in federal

district court per Rule 41(a)(1)(A)@) of the

Federal Rules of Civil’Procedure, and the

removed federal matter-is listed as “terminated.” As a result, the Supreme Court

Prothonotary administratively closed the

King’s Bench matter Hsted at 187 EM

2011.

5. Tangential Matters: . additional

cases involving. propriety of FCDO

appearances, removed to federal

court by the FCDO .

The Philadelphia District Attorney mor

recently challenged the propriety of the

APPENDIX 025

CoM. v. SPOTZ

Pa 883

Cite ag 99 AAd 866 (Pa, 2014)

FCDO’s appearance in a specific capital

PCRA appeal, Commonwealth v, Mitchell,

617 CAP. The District Attorney filed a

Mation to Remove Federal Counsel on

grounds that the FCDO’s activities were

not authorized by federal court order. As

in 157 EM 2011, the Commonwealth argued that this Court had jurisdiction, had

the obligation to enforce federal legislative

restrictions on the FCDO, and had separate supervisory authority to determine

who may properly appear as counsel in

Pennsylvania proceedings.

The FCDO responded, in relevant part,

that nothing prevented it from domg more

than authorized by a federal court appointment, so long as federal funds were not

employed, According to the FCDO, federal law “does not prohibit an attorney

from engaging in activities on behalf of a

client that fall outside [the governing federal statute] and are not compensable with

federal funds.” The FCDO added that it

had “non-federal resources” to support its

nonfederal activities, noting that the Defender Association of Philadelphia had established the “Pennsylvania Capital Representation Project,” which “receives private

grant funds and contributions to support

FCDO activities the federal sustaining

grant cannot fund.” The FCDO added

that the AO is aware of its activities in

state court “and the fact that they are

supported through non-federal resources.”

Answer, 11 24-30. ‘

In light of these representations, on danuary 10, 2018, this Court remanded Mitehell to the PCRA court for a determination

of whether the FCDO could properly continue in the appeal. The per cwriam order

provided, in relevant part, as follows:

{T]he matter is REMANDED to the

PCRA court to determine whether current counsel, the {FCDO] may represent

appellant in this state capital PCRA proceeding, or whether other appropriate

post-conviction counsel should be appointed. In this regard, the PCRA

court must first determine whether the

FCDO used any federal grant monies to

support its activities:in state court in

this case. If the FCDO cannot demonstrate that its actions here were all privately financed, and convincingly attest

that this will remain the case going forward, it is to be removed. If the PCRA

court determines that the actions were

privately financed, it should then determine “after a colloquy on the record,

that the defendant has engaged counsel

who has entered, or will promptly enter,

an appearance for the collateral review

proceedings,” See. Pa.R.Crim.P.

904(H)(1)(c). We note that the order of

appointment produced by the FCDO, issued by the U.S, District Court for the

Eastern District of Pennsylvania at No.

2:11-cv-02068-MAM, ‘and dated April

i8, 2011, appointed the FCDO to represent appellant only for purposes of litigating his civil: féderal habeas corpus

action, and the authority of the FCDO to

participate in this: state capital proceeding is not clear....See 18 U8.C.

§ 3599(a)(2) (authorizing appointment of

counsel to indigent. state defendants actively pursuing federal habeas corpus

relief from death sentence).

Order, 1/10/18. Justice Todd filed a Dissenting Statement, which was joined by

Justice Baer.

The remand should have been a simple

matter: officers of the Court, operating

under an ethical duty of candor, could

provide the PCRA judge with proof of

what they had alleged. te this Court. Tnstead, after a remand hearing had been

scheduled, on April: 11, 2013, the FODO,

by its outside. counsel, filed’ a Notice of

Filing of Notice. of, Removal with the

PGRA court. The FCDO stated that, on

April 5, 2018, it had.removed the represen-

APPENDIX 026

884 Pa.

tation question to federal court pursuant to

28 U.S.C, §§ 1442 and 1446(d).

Thereafter, the FCDO removed multiple

other Pennsylvania capital cases to federal

court where similar inquiries into the lawfulness ‘of its state court capital agenda

were being made—thus ensuring delays.in

every one of those matters, See Jn re

Proceedings Before the Court of Common

Pleas of Monroe County, Pa. to Determine

Propriety of State Court Representation

by Defender Ass'n of Phila, Filed in Com.

of Pa. v. Manuel Sepulveda, 2018 WL

4459005, at *1 n. 2 (M.D.Pa. Aug, 16, 2018)

(memorandum by Caputo, J.) (collecting

cases) (hereinafter “In Re FCDO (Sepulveda) I”),

The FCDO never notified this Court of

its removal action in Mitchell, The federal

PACER system reveals three pleadings

filed by the FCDO relating to Mitchell, all

assigned to the Honorable Mary

McLaughlin of the U.S, District Court for

the Eastern District of Pennsylvania. I

will describe the pleadings in Mitchell

(which ave representative of the FCDO’s

position in all the removed cases) only as

they are relevant to assessing the FCDO's

account to this Court of the basis, and the

funding, for its extensive private litigation

agenda in Pennsylvania capital cases.

First, under the docket number for the

dormant federal habeas petition held in

abeyance while the FCDO pursued Mitchells PCRA petition, the FCDO filed a

“Motion to Reactivate Case in Order to

Enter an Order Directing Petitioner's

Counsel to Exhaust Claims in State

Court.” In short, the FCDO sought retroactive federal authorization for extensive

state court actions it had already undertaken and—according to what it told this

Court—had supported strictly with its

“private” resources.

that, after filing the PCRA appeal now

pending, it began investigating new claims

The FCDO related

99 ATLANTIC REPORTER, 3d SERIES

not pursued by PCRA counsel. (In fact,

the brief the FCDO eventually filed in this

Court raises 15 claims, many of which are

new, non-federal claims alleging that

Mitchell’s PCRA counsel was ineffective.)

The federal pleading stated that the

FCDO conducted this serial PCRA investigation in “reasonable anticipation” of one

day being appointed to serve as Mitchell's

federal habeas counsel, Meanwhile, the

FCDO prepared and filed a federal habeas

petition on March 25, 2011, which included

the new claims it had developed. The

FCDO asked to be appointed ta represent

Mitchell on the federal:habeas petition it

had already prepared; and then asked

that the same petition! be held in abeyance.

Both requests were granted. The federal

court, however, never appointed the FCDO

to litigate the PCRA appeal and the new

claims the FCDO had developed.

The FCDO then remarkably claimed

that both the Commonwealth’s Motion to

Remove Counse! and this Court's order

“ave part of a broader, ongoing effort on

the part of some prosecutors’ offices ...

to deprive capital petitioners” of FCDO

representation, The FCDO noted instances where this Court remanded for determinations of whether the FCDO should be

permitted to rémain in a capital case; instances where county prosecutors made

challenges to FCDO appearances; and instances where the Pennsylvania Attorney

General’s Office sought to disqualify it. In

each case, the FCDO said, it had removed

or will remove those questions to federal

court. oe,

Turning to its legal argument, the

FCDO claimed that our remand in Mitcheli “directs the PCRA court to take action

against the FCDO that is pre-empted by

federal law.” The FCDO alleged that the

propriety of its appearance in Mitchell waa

not “unclear” merely hecause it acted without authorization. The FCDO further ar-

APPENDIX 027

COM. v. SPOTZ

Pa. 885

Cite as 99 A.3d 866 (Pa, 2014)

gued that the federal court had the authority to expand the FCDO’s appointment to

encompass pre-federal habeas matters under Harbison v. Bell and 18 U.S.C. § 8599,

notwithstanding that those authorities

speak of state court proceedings subsequent or ancillary to federal faheas review. Finally, the FOCDO opined that

Mitchell's claims will never be “properly

exhausted” unless the FCDO does the exhausting.

SJndge McLaughlin denied the reactivation motion in a memorandum dated Auguat 15, 2013, See Mitchell v. Wetzel, 2018

WL 4194324 (E.D.Pa.2018). Judge

McLaughlin noted that the FCDO was requesting her to “expressly authorize the

FCDO to pursue Mitchell's state court

proceedings in the scope of its federally

funded duties” Jd at “2 Judge

McLaughlin’s reasoning is instructive because it confirms what the federal statute

plainly states, what the FCDO was told

years ago when it attempted the same

diversion of federal funds in Wilson v.

Horn, 1997 WL 187848, at *5 (E.D.Pa.

1997) (discussed infra), and what Harbison. v, Bell reaffirmed more recently: federal funds cannot be diverted to pursue

the FCGDO's private agenda of exhausting

claims in state court in advance of federal

habeas review.

Harbison specifically addressed the

situation where federal counsel had been

appointed for purposes of a [28 U.S.C.]

§ 2254 [ie, state prisoner’s federal habeas] claim and the petitioner now requests that the federal counsel pursue

his state post-convietion claims. The

Court held that, although the state court

proceeding is technically “subsequent”

to a federal appointment, this situation

was not contemplated by [18 U.S.C.)

§ 3599(e). In the “ordinary course of

proceedings for capital defendants,” petitioners must exhaust their claims in

state court before seeking federal habe-

as relief, “That state posteonvietion litigation sometimes follows the initiation of

federal habeas because a petitioner has

failed to exhaust does not change the

- order of proceedings contemplated by

the statute.” (Harbison, 566 U.S] at

189-90 [129 8.Ct. 1481] (internal citations omitted).

The Supreme Court-also provided an

exception to its holding. In a footnote,

it stated that a district court “may determine on a case-by-case basis that it is

appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation.” 7d. at 190, n.

7 129 S.Ct. M8I[]. The Court made

clear that this exception was not encompassed within the statutory meaning of

“qvailable post-conviction process;” instead, it was made possible pursuant to

§ 3599(e)'s provision that counsel may

represent her client in “other appropriate motions and procedures.” Id.

In Mitchell's case, he is litigating a

atate postconviction “proceeding after

federal counsel was’ appointed to pursue

his § 2254 claim. ‘The Harbison Court

explicitly held that this type of proceeding is not in the ordinary course of

“subsequent” available ‘proceedings.

The Court’s analysis therefore turns on .

whether it should grant Mitchell’s motion ingofar as it is an “appropriate motion[ ]” as discussed:in the Harbison

footnote, .

Harbison did not clarify the eircumstances under which the exception

should be applied: it states only that a

Court may direct federal counsel to exhaust state claims if it determines, “on a

case-by-case basis,” that it is “appropriate.” The Court’s decision must stay

consistent with the general purpose and

reasoning of the Harbison decision;

and, its exercise of, discretion may not

permit Horbison’s footnote exception to

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