Appellant's Withdrawal of the Motion for
Withdrawal of the Opinion of Chief Justice
Castille with Request for Referral to the
Full Court, and the Motion for Recusal of
Chief Justice Castille from Consideration
of Reargument with Request for Referral
to the Full Court
Appellee's Answer, including Request for
a Rule to Show Cause
On July 28, 2011, this Court entered a per curiam Order in this matter taking three Motions under advisement pending compliance with our Order: (1) Appellant's Motion for Withdrawal of the Opinion of Chief Justice Castille with Request for Referral to the Full Court; (2) Appellant's Motion for Recusal of Chief Justice Castille from Consideration of Reargument with Request for Referral to the Full Court; and (3) the Commonwealth's Answer and Motion for Sanctions. This Court's Order directed Appellant's Counsel, Michael Wiseman, Esquire, of the Defender Association of Philadelphia, Federal Community Defender Office, Eastern District of Pennsylvania ("FCDO"), as an officer of this Court, to file a verified "Statement of the FCDO's
Involvement in Pennsylvania State Court Litigation of Capital Cases," and specified the information to be included. The Order further mandated that the verified Statement be
filed within thirty days of the date of our Order. Madame Justice Todd filed a Dissenting Statement, which was joined by Mr. Justice Baer.
Neither Attorney Wiseman nor the FCDO sought reconsideration or a stay of the 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 "call[ed] 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 contempt for its non-compliance with our prior Order. The Commonwealth notes, inter alia, that the primary stated reason 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, ["i]t is immaterial whether counsel deems withdrawal to be appropriate," as that decision is for the Court. Moreover, 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 pleadings, it is hereby ORDERED that:
(1) The FCDO'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 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 28 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."
(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 ...