In Re: Proceedings Before the Court of Common Pleas of Monroe County, Pa. to Determine Propriety of State Court Representation by Defender Association of Philadelphia, COMMONWEALTH OF PENNSYLVANIA,
A. RICHARD CAPUTO, District Judge.
In Manuel Sepulveda's ("Mr. Sepulveda") pending Post Conviction Relief Act ("PCRA") proceeding challenging his conviction in the Court of Common Pleas of Monroe County, Pennsylvania, the PCRA court scheduled a hearing to determine whether the Federal Community Defender Organization, Eastern District of Pennsylvania (the "FCDO") may or should lawfully continue to represent Mr. Sepulveda in his PCRA proceeding. Relying on the federal officer removal statute, 28 U.S.C. § 1442, Respondent Defender Association of Philadelphia removed the proceeding involving the hearing to this Court. Mr. Sepulveda'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. 9) and the Defender Association of Philadelphia's Motion to Dismiss (Doc. 8) the proceeding.
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 Monroe 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
Manuel Sepulveda was convicted of two counts of first-degree murder and related counts, and sentenced to death on January 27, 2003, in the Court of Common Pleas of Monroe County, Pennsylvania. Mr. Sepulveda's convictions and sentence of death were affirmed by the Pennsylvania Supreme Court on August 19, 2004. Mr. Sepulveda's petition for certiorari review was denied on February 21, 2006.
Thereafter, Mr. Sepulveda filed a motion in this Court for leave to proceed in forma pauperis and appointment of federal habeas corpus counsel. See Sepulveda v. Beard, et al., No. 06-cv-0731, (M.D. Pa. Apr. 7, 2006). On that same day, Mr. Sepulveda'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 Commonwealth v. Harris, No. 13-062 (E.D. Pa.) (Rufe, J.). appointed as co-counsel for Mr. Sepulveda's to-be-filed habeas corpus petition.
On June 7, 2006, after the Governor of Pennsylvania signed a warrant scheduling execution for July 27, 2006, Mr. Sepulveda petitioned this Court for a stay of execution, which was granted on June 14, 2006.
Thereafter, on August 16, 2006, the FCDO, in the person of then-FCDO lawyer Michael Wiseman, entered its appearance for Mr. Sepulveda in the Court of Common Pleas on the homicide case.
Following a series of Orders on his applications for extensions of time, Mr. Sepulveda filed a timely petition for habeas corpus relief in this Court on December 4, 2006. On December 6, 2006, on Mr. Sepulveda's unopposed motion, the federal habeas corpus proceedings were stayed pending exhaustion of state remedies.
On January 2, 2007, Mr. Sepulveda filed an amended PCRA petition. After holding an evidentiary hearing, the PCRA court denied Mr. Sepulveda's petition on October 11, 2007. Mr. Sepulveda appealed to the Pennsylvania Supreme Court.
On November 28, 2012, the Pennsylvania Supreme Court issued an Opinion holding that Mr. Sepulveda's trial "counsel's performance related to the development and presentation of mitigating evidence was constitutionally deficient." Commonwealth v. Sepulveda, 55 A.3d 1108, 1130 (Pa. 2012). Thus, the Pennsylvania Supreme Court remanded to the PCRA court for the limited purpose of determining whether counsel's deficient performance prejudiced Mr. Sepulveda. See id. at 1131. The Pennsylvania Supreme Court concluded its opinion by addressing the FCDO's appearance as counsel in the PCRA proceeding:
[T]he FCDO simply entered its appearance in this case to represent appellant in his state postconviction challenge. The FCDO filed a petition for a writ of habeas corpus on appellant's behalf in the U.S. District Court for the Middle District of Pennsylvania on December 4, 2006. The PCRA court notes in its opinion that federal counsel were appointed by a federal district court judge to file a federal habeas corpus petition; instead, the FCDO proceeded to Pennsylvania state court. The federal proceedings have been stayed pending resolution of appellant's PCRA claims.
Appellant is represented by three FCDO lawyers: Michael Wiseman, Esquire, Keisha Hudson, Esquire, and Elizabeth Larin, Esquire. Attorney Wiseman is lead counsel and he signed the brief. Recently, in another capital matter, Commonwealth v. Abdul-Salaam, 42 A.3d 983 (Pa. 2012), the FCDO withdrew its appearance and advised that Attorney Wiseman, lead counsel there too, would be representing Abdul-Salaam on a pro bono basis, listing a private address for Wiseman. No such notice has been entered here. It is unclear whether Attorney Wiseman remains a member of the FCDO for some cases, while acting as " pro bono " counsel in other cases. If federal funds were used to litigate the PCRA below-and the number of FCDO lawyers and witnesses involved, and the extent of the pleadings, suggest the undertaking was managed with federal funds-the participation of the FCDO in the case may well be unauthorized by federal court order or federal law. Accordingly, on remand, the PCRA court is directed to determine whether to formally appoint appropriate post-conviction counsel and to consider whether the FCDO may or should lawfully represent appellant in this state capital PCRA proceeding. 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).
Id. at 1151.
B. Commonwealth v. Mitchell
Less than two months after it rendered its decision in Sepulveda, 55 A.3d 1108, the Pennsylvania Supreme Court, on January 10, 2013, 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 Disqualification Hearing Order
In view of the Pennsylvania Supreme Court's remand instructions, the PCRA court, on February 4, 2013, scheduled a hearing for March 1, 2013 "for the sole purpose of addressing the Supreme Court's mandate directing this Court to determine whether to formally appoint appropriate post-conviction counsel and to consider whether the FCDO may or should lawfully represent appellant in this state capital PCRA proceeding.'" (Doc. 1, Ex. C.)
D. The Notice of Removal
The FCDO, on February 21, 2013, removed the proceeding (the "Disqualification Proceeding") relating to the judicial determination of whether the FCDO may lawfully represent Mr. Sepulveda in his PCRA action pursuant to 28 U.S.C. § 1442. (Doc. 1.) The FCDO did not remove the underlying action in which Mr. Sepulveda is challenging his conviction under the PCRA, and that action remains in state court. ( Id. at ¶ 6.) The Notice of Removal asserts that the Disqualification Proceeding 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 ¶ 19.)
The FCDO also argues that a number of colorable federal defenses will be raised in opposition to the Disqualification Proceeding. These defenses include, among others: (1) preemption; (2) primary jurisdiction; and (3) that the Disqualification Proceeding 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 ¶¶ 29-44.)
E. The FCDO's Motion to Dismiss and the Commonwealth's Motion to Remand
Following the removal of the proceeding concerning the FCDO's representation of Mr. Sepulveda, the FCDO filed a motion to dismiss the proceeding pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 8.) The FCDO asserts that the Disqualification Proceeding 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 ...