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Stephenson v. Mays

United States District Court, E.D. Tennessee, Knoxville

May 29, 2018

JONATHAN STEPHENSON, Petitioner,
v.
TONY MAYS, Warden, [1]Respondent.

          GUYTON JUDGE

          MEMORANDUM & ORDER

          REEVES JUDGE

         This is a capital habeas corpus case brought pursuant to 28 U.S.C. § 2254 by Jonathan Stephenson (“Petitioner”). Petitioner was convicted of first degree murder and conspiracy to commit first degree murder by a Cocke County jury in 1989. He was sentenced to death for the murder charge, and received a consecutive sixty-year sentence for the conspiracy charge.[2]Petitioner currently is represented by Federal Defender Services of Eastern Tennessee, Inc. (“FDSET”) [Doc. 3].

         Presently before the court is Petitioner's motion to remove counsel for a conflict of interest [Doc. 88].[3] Respondent has filed a response in opposition [Doc. 94], to which Petitioner has filed a reply [Doc. 95]. A hearing on Petitioner's motion was held on February 2, 2018, in Nashville, Tennessee. For the following reasons, Petitioner's motion to remove counsel [Doc. 88] will be GRANTED, and, pursuant to 18 U.S.C. §§ 3599(a)(2) and (e), the Office of the Federal Public Defender for the Middle District of Tennessee will be APPOINTED as substitute counsel for Petitioner throughout every stage of available judicial proceedings in this case.

         I. BACKGROUND

         Petitioner's motion seeks the removal of FDSET as his court-appointed counsel due to an alleged conflict of interest arising from the employment in FDSET's Greeneville office of Attorney Tim Moore, who represented him previously at a resentencing hearing that is the subject of several of his pending habeas claims [Doc. 88 p. 1]. Petitioner alleges that Moore's association with FDSET creates a conflict of interest since it would be “impossible” for his current counsel to pursue claims of ineffective assistance against Moore [Id.] Accordingly, Petitioner asks the Court to remove FDSET as his counsel and either appoint new counsel or permit him to represent himself [Id. p. 2].

         Respondent opposes Petitioner's request to remove FDSET as counsel for numerous reasons: (1) substitution of counsel at this stage has the potential to cause unnecessary delay in matters currently pending before the Court; (2) Petitioner has not alleged when he first became alerted to Moore's employment with FDSET; (3) Petitioner has not complained about a lack of communication between himself and his current attorney; and (4) Petitioner cannot show any active conflicts of interest arising from Moore's employment in the Greenville office of FDSET, or that his employment has adversely affected the performance of his current counsel [Doc. 94]. In this regard, Respondent's counsel notes that he himself has never engaged with Moore in any capacity, either prior to or since Moore's employment with FDSET [Id. p. 3]. Alternatively, in the event that the Court should decide to remove FDSET, Respondent requests that substitute counsel be appointed, rather than permitting Petitioner to represent himself [Id. pp. 4-5].

         In reply, Petitioner asserts that Moore was hired by the Circuit Court of Cocke County to be one of his attorneys during a sentencing hearing which “was in contention” because Cocke County allegedly did not have jurisdiction [Doc. 95 p. 1]. Petitioner further alleges that Moore filed a motion with the appellate court in which “he was supposed to” object to the jurisdiction of Cocke County but did not [Id. pp 1-2]. Had Moore not “failed in his duties, ” Petitioner contends, the jurisdictional argument “would have been successfully presented to the trial court” and the “case should have and would have been dismissed” [Id. pp. 4-5]. Petitioner submits that this situation creates a conflict of interest because FDSET will not argue a claim of ineffectiveness against an attorney employed by them [Id. p. 5].

         After hearing from Petitioner and counsel for both parties at the proceeding on February 2, 2018, the Court instructed Petitioner to further discuss the situation with his attorney to see if the situation could be resolved. The Court subsequently received notice from FDSET that, after consultation, Petitioner indicated that he did not wish to withdraw his motion to remove counsel and requested a ruling on that motion [Doc. 109].

         II. STANDARD OF REVIEW

         Title 18 U.S.C. § 3599(a)(2) “entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings.” Martel v. Clair, 565 U.S. 648, 652 (2012). While the statute “leaves it to the court to select a properly qualified attorney, ” Christeson v. Roper, 135 S.Ct. 891, 894 (2015), it further contemplates that the court may replace appointed counsel with “similarly qualified counsel . . . upon motion of the defendant.” 18 U.S.C. § 3599(e). Once a defendant raises his dissatisfaction with his court-appointed counsel, “the district court is obligated to inquire into the defendant's complaint and determine whether there is good cause for the substitution.” Benitez v. United States, 521 F.3d 625, 632 (6th Cir. 2008).

         A motion for substitution of appointed counsel brought by an indigent petitioner seeking federal habeas relief in capital cases should be decided under the same “interests of justice” standard applicable in federal non-capital cases. Clair, 565 at 657-62. Among the factors to be considered in determining whether substitution of counsel is warranted “include: the timeliness of the motion; the adequacy of the district court's inquiry into the defendant's complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client's responsibility, if any, for that conflict).” Christeson, 135 S.Ct. at 894 (quoting Clair, 565 at 663); see also United States v. Iles, 906 F.2d 1122, 1130 n. 8 (6th Cir. 1990).

         III. ANALYSIS

         Plaintiff's complaint regarding a potential conflict of interest has obligated the Court to explore his allegations to determine whether the interests of justice require the replacement of FDSET as court-appointed counsel in this case. See Clair, 565 U.S. at 658-63 (adopting an “interests of justice” standard on a motion for substitution of counsel under § 3599(e)). Upon ...


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