IN RE: COMMONWEALTH'S MOTION TO APPOINT NEW COUNSEL AGAINST OR DIRECTED TO DEFENDER ASSOCIATION OF PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA,
FRANCIS BAUER HARRIS
CYNTHIA M. RUFE, District Judge.
This matter comes before the Court having been removed by the Federal Community Defender Organization ("FCDO") from the Lancaster County Court of Common Pleas. On February 11, 2013, prior to removal, Pennsylvania Attorney General Kathleen G. Kane filed a Motion to Appoint Counsel in the underlying Post-Conviction Relief Act ("PCRA") proceeding, Commonwealth v. Harris , No. CP-36-CR-0000672-1997 (the "Disqualification Motion"). In the Disqualification Motion, the Commonwealth seeks to disqualify Defendant Francis Bauer Harris's FCDO counsel from representing Mr. Harris in his state court PCRA proceedings on the grounds that such representation violates federal law. Without removing the underlying PCRA proceeding, the FCDO removed the Disqualification Motion to this Court and thereafter, filed a Motion to Dismiss, arguing that the Commonwealth is without standing to enforce the statute under which it seeks to disqualify FCDO counsel. The Commonwealth then filed a Motion to Remand, asserting that the Federal Officer Removal Statute, 28 U.S.C. § 1442, pursuant to which the Disqualification Motion was removed, does not allow removal in this case. The Court held oral argument on the pending motions and permitted supplemental briefing. The Motion to Remand and the Motion to Dismiss are now ripe for disposition.
A. Background of Francis Bauer Harris's Criminal Proceedings
Francis Bauer Harris was convicted of first degree murder on October 4, 1997, in the Lancaster County Court of Common Pleas, and after a penalty phase proceeding, was sentenced to death. On November 20, 2002, the Pennsylvania Supreme Court affirmed the conviction and sentence, and on December 8, 2003, the United States Supreme Court denied a Petition for Writ of Certiorari. On March 15, 2004, then-Governor Edward Rendell signed a death warrant, which scheduled Mr. Harris's execution for May 13, 2004.
Mr. Harris petitioned this Court for a stay of execution, and at the same time, requested leave to proceed in forma pauperis and asked that counsel be appointed to represent him. The matter was docketed as a capital habeas petition at Civil Action No. 04-1237, on March 22, 2004. By Order dated March 29, 2004, after a telephone conference with FCDO counsel and the Lancaster County District Attorney's Office, this Court stayed Mr. Harris's execution, granted his motion to proceed IFP, and pursuant to 21 U.S.C. § 848(q)(4)(B), appointed the FCDO "to represent Petitioner [Harris] in his to-be-filed Petition for Writ of Habeas Corpus."
FCDO counsel then filed a Petition for Writ of Habeas Corpus in this Court on Mr. Harris's behalf on October 12, 2004. On November 22, 2004, FCDO attorneys also filed a PCRA petition in the Lancaster County Court of Common Pleas on Mr. Harris's behalf. The Court thereafter granted Mr. Harris's Motion to place the federal habeas proceeding in suspense pending exhaustion of state court remedies, stating that it would revisit the issue of whether suspense or dismissal without prejudice was warranted during the pendency of the state proceedings. By Opinion and Order dated September 22, 2005, the Court dismissed the Petition without prejudice pending exhaustion of state court remedies.
Litigation in Mr. Harris's underlying state post-conviction proceedings has been ongoing since that time. On February 11, 2013, the Commonwealth for the first time raised an objection to the FCDO's representation of Mr. Harris in state court, filing the Disqualification Motion that is the subject of these proceedings.
B. Background of What the FCDO Calls "The Commonwealth's Campaign Against the FCDO"
The FCDO asserts that following a concurring opinion by the Chief Justice of the Pennsylvania Supreme Court in an unrelated criminal appeal, which questioned whether FCDO attorneys may appear in PCRA proceedings,  the Office of the Philadelphia District Attorney petitioned the Pennsylvania Supreme Court to exercise its "King's Bench Jurisdiction" pursuant to 42 Pa. C.S. § 726 to bar FCDO attorneys from appearing in any PCRA proceedings, based on the FCDO's purported improper use of federal funds in representing defendants in these proceedings. The FCDO removed the King's Bench Proceeding to federal court on December 8, 2011; six days later the Commonwealth voluntarily dismissed the petition. After voluntary dismissal of the King's Bench Proceeding, the Commonwealth, through various county District Attorney's Offices and the Office of the Attorney General, continued to pursue the objective of the King's Bench Proceeding through piecemeal litigation, challenging the appearance of FCDO counsel in several individual, capital PCRA proceedings (including that of Mr. Harris).
On January 10, 2013, the Pennsylvania Supreme Court issued a per curiam order in Commonwealth v. Mitchell, No. 617,  in which it remanded a case to the PCRA court to determine whether the FCDO could continue to represent the defendant in PCRA proceedings. The Pennsylvania Supreme Court instructed the PCRA court, on remand, to determine whether the FCDO used any federal grant monies to support its activities and directed that if the FCDO could not demonstrate that all of their actions in PCRA court were privately financed, counsel should be removed.
Following the Mitchell remand, the Attorney General filed the Disqualification Motion in Mr. Harris's PCRA proceedings. In the Motion, the Commonwealth asserts that pursuant to 18 U.S.C. § 3599, the FCDO may not represent Mr. Harris in his PCRA proceeding and citing Mitchell, argues that the PCRA court should hold a hearing to determine whether the FCDO has used or will use federal grant money to support its state court activities. The FCDO timely removed the Motion to this Court. This case is one of several cases removed by the FCDO to federal court after the Commonwealth filed a disqualification motion citing improper use of federal funds.
C. Background of the Criminal Justice Act
The Criminal Justice Act ("CJA"),  was enacted "to promote the cause of criminal justice by providing for the representation of defendants who are financially unable to obtain an adequate defense in criminal cases in the courts of the United States." The CJA authorizes, inter alia, the appointment of counsel for indigent inmates seeking habeas corpus relief under 28 U.S.C. § 2254,  and makes appointment mandatory for those indigents seeking relief from a death sentence. Pursuant to the CJA, each federal district court must implement a plan for the furnishing of this representation; the plan may establish a federal "Community Defender Organization" ("CDO"), "a nonprofit defense counsel service established and administered by any group authorized by the plan to provide representation." The Federal Community Defender Organization ("FCDO") appearing in the instant case is one such organization and is a division of the Defender's Association of Philadelphia.
The CJA requires that counsel be appointed for an indigent defendant "[i]n any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence." It further requires that each United States district court implement a plan for furnishing representation in accordance with the CJA, and authorizes the Judicial Conference of the United States to issue rules and regulations governing the operation of such plans. The United States District Court for the Eastern District of Pennsylvania's Plan authorizes the FCDO to provide representation to persons so entitled under the CJA, and FCDO attorneys are required to abide by CJA Guidelines.
In addition to representing federal criminal defendants and capital defendants in § 2254 proceedings, FCDO attorneys appear on behalf of federal clients in PCRA proceedings before Pennsylvania state courts. They do so either (1) on the purported authority of a federal court order to exhaust their client's state court remedies or (2) as Pennsylvania-barred attorneys appointed by the PCRA court or retained by a defendant to provide representation on a pro bono basis. The FCDO asserts that the research and investigation of federal claims, which are essential to federal habeas representation, may be compensated with CJA funds even where the work is done in the PCRA proceedings, before a federal habeas petition is filed. However, work that need not be undertaken to provide federal habeas representation (such as appearing at state ...