In Re: Commonwealth's Request for Relief Against or Directed to Defender Association of Philadelphia, Respondent,
ANTHONY DICK. COMMONWEALTH OF PENNSYLVANIA,
A. RICHARD CAPUTO, District Judge.
In response to Anthony Dick's ("Mr. Dick") amended counseled Post Conviction Relief Act ("PCRA") petition challenging his conviction in the Court of Common Pleas of Columbia County, Pennsylvania, the Commonwealth of Pennsylvania (the "Commonwealth") filed a response to the petition with a "New Matter." The "New Matter" requests the Court of Common Pleas to conduct a hearing to determine whether lawyers employed by the Federal Community Defender Organization, Eastern District of Pennsylvania (the "FCDO") should be removed as Mr. Dick's counsel in the PCRA proceeding. Relying on the federal officer removal statute, 28 U.S.C. § 1442, Respondent Defender Association of Philadelphia removed the Commonwealth's hearing request to this Court. Mr. Dick's PCRA proceeding, however, has not been removed and remains in state court. Now before the Court are the Commonwealth's Motion to Remand (Doc. 10) the request for a hearing to the PCRA court and the Defender Association of Philadelphia's Motion to Dismiss (Doc. 11) the Commonwealth's hearing request.
The underlying proceeding in this removed action seemingly implicates several issues of federal law involving the construction of federal statutes and the application of relevant federal decisional authority and legal principles. Nonetheless, I am of the view that the FCDO fails to satisfy its burden to establish the existence of federal jurisdiction under the federal officer removal statute. Specifically, because the "acting under" requirement for removal under 28 U.S.C. § 1442(a)(1) is not satisfied in this case, the Commonwealth's motion to remand this action to the Court of Common Pleas of Columbia County will be granted. And, since the Commonwealth's motion to remand will be granted, the FCDO's motion to dismiss will be denied as moot.
A. Relevant Factual Background
On August 22, 2007, Anthony Dick pleaded guilty to two counts of first-degree murder and related offenses in the Court of Common Pleas of Columbia County, Pennsylvania. The following day, after waiving his right to a sentencing jury, Mr. Dick was sentenced to death. Mr. Dick's conviction and sentence of death were affirmed on August 18, 2009. Mr. Dick's petition for certiorari review was denied on April 19, 2010.
Thereafter, Mr. Dick filed a motion in this Court for leave to proceed in forma pauperis and appointment of federal habeas corpus counsel. See Dick v. Beard, et al., No. 10-cv-0988, (M.D. Pa. May 7, 2010). On July 6, 2010 Mr. Dick's request to proceed in forma pauperis was granted, and the Capital Habeas Unit of the Federal Public Defender Office for the Middle District of Pennsylvania and the FCDO were appointed as co-counsel for Mr. Dick's to-be-filed habeas corpus petition.
On October 17, 2012, Mr. Dick filed his habeas petition. On the same day, he filed a motion to stay the proceedings pending exhaustion of state court remedies. Mr. Dick's request to stay the proceedings was denied and the petition was dismissed without prejudice on November 29, 2012 because adequate time would remain to file a habeas petition under AEDPA's statute of limitations following exhaustion of state remedies.
In the meantime, on July 7, 2010, Mr. Dick had filed a pro se petition for post-conviction relief in the Court of Common Pleas of Columbia County. In that petition, Mr. Dick requested that the court appoint the FCDO to represent him. On July 29, 2010, at the request of Mr. Dick and upon motion by the FCDO, the FCDO was appointed to represent Mr. Dick in his PCRA proceedings.
On June 29, 2012, the Commonwealth moved in the Court of Common Pleas to have the FCDO disqualified from representing Mr. Dick in state court. The Commonwealth's motion was denied. Thereafter, on September 26, 2012, Mr. Dick filed his amended counseled petition for post-conviction relief in the Court of Common Pleas.
On January 25, 2013, the Commonwealth filed a response to the PCRA petition. In that response, under the heading "New Matter, " the Commonwealth made a new request (the "Commonwealth's Request") for the Court of Common Pleas to conduct a hearing pursuant to the Pennsylvania Supreme Court's Order in Mitchell.
B. Commonwealth v. Mitchell
On January 10, 2013, the Pennsylvania Supreme Court issued a per curiam order in the PCRA case of Commonwealth v. Mitchell, No. 617 CAP (the " Mitchell Order"). Upon consideration of the Commonwealth's motion to remove counsel in Mitchell, the Pennsylvania Supreme Court remanded to the PCRA court to "determine whether current counsel, the Federal Community Defender Organization ("FCDO") may represent appellant in this state capital PCRA proceeding; or whether other appropriate post-conviction counsel should be appointed." Id. To resolve that issue, the Pennsylvania Supreme Court provided the following guidance:
[T]he 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-02063-MAM, and dated April 15, 2011, appointed the FCDO to represent appellant only for purposes of litigating his civil federal habeas corpus action, and the authority of the FCDO to participate in this state collateral proceeding is not clear. See 18 U.S.C. § 3599(a)(2) (authorizing appointment of counsel to indigent state defendants actively pursuing federal habeas corpus relief from death sentence).
Justice Todd, joined by Justice Baer, filed a dissenting statement, noting that the court directed "the removal of counsel without any stated analysis of the issues involved, issues which require the construction of federal statutes and other authority, consideration of the relationship between federal and state court systems in capital litigation, and consideration of counsel's role therein." Commonwealth v. Mitchell, No. 617 CAP (Todd, J., dissenting).
C. The Commonwealth's Request for a Mitchell Hearing
Citing the per curiam Mitchell Order in its entirety, the Commonwealth, on January 25, 2013, filed its response with "New Matter" to the PCRA petition. As noted, the Commonwealth in that response requested the Court of Common Pleas to conduct a hearing consistent with the Mitchell Order.
D. The Notice of Removal
On February 27, 2013, the FCDO removed the Commonwealth's Request to this Court pursuant to 28 U.S.C. § 1442. (Doc. 1.) The FCDO did not remove the underlying action in which Mr. Dick is challenging his conviction under the PCRA, and that action remains in state court. ( Id. at ¶ 1.) The Notice of Removal asserts that the Commonwealth's Request is properly removed to this Court because "it is directed against a person, i.e., the FCDO, acting under an officer or agency of the United States, for or relating to the FCDO's acts under color of such office, ' 28 U.S.C. § 1442(a)(1), and is a proceeding that seeks a judicial order, 28 U.S.C. § 1442(c)." ( Id. at ¶ 11.)
The FCDO also argues that a number of colorable federal defenses will be raised in opposition to the Commonwealth's Request. These defenses include, among others: (1) preemption; (2) primary jurisdiction; and (3) that the Commonwealth's Request seeks to deprive the FCDO and its lawyers of their First Amendment rights and their equal protections rights under the Fourteenth Amendment. The FCDO further maintains that the Commonwealth's position is predicated on an incorrect interpretation of federal law. ( Id. at ¶¶ 22-36.)
E. The FCDO's Motion to Dismiss and the Commonwealth's Motion to Remand
Following the removal of the Commonwealth's Request, the FCDO filed a motion to dismiss the proceeding pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 7.) The FCDO asserts that the Commonwealth's Request fails to state a claim on which relief can be granted because sole responsibility for the enforcement of the funding provisions on which the Commonwealth relies, 18 U.S.C. § 3006A and 18 U.S.C. § 3599, lies with the Administrative Office of the United States Courts ("AO"). Thus, the FCDO contends that the federal statutes the Commonwealth seeks to enforce do not endow any non-federal entity with a right of action. However, to the extent that the Commonwealth is not barred from proceeding under these statutes, the FCDO requests that the action be stayed and referred to the AO under the doctrine of primary jurisdiction.
On March 28, 2013, the Commonwealth filed a motion to remand this proceeding to the Court of Common Pleas of Columbia County. (Doc. 10.) The Commonwealth argues that remand is necessitated in this case because the FCDO is unable to establish that it "act[s] under" a federal officer or agency as required by 28 U.S.C. § 1442(a)(1); the Commonwealth's Request does not qualify as a "civil proceeding" as defined by § 1442(d)(1); and the Commonwealth's Request was not directed to or against the FCDO. Additionally, the Commonwealth asserts that Younger abstention prohibits removal of the instant proceeding.
After the motion to dismiss and motion to remand were fully briefed, oral argument was held on both motions on June 19, 2013. The ...