United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge
BACKGROUND OF THIS ORDER IS AS FOLLOWS:
before the court is a motion for leave to proceed in forma
pauperis and for appointment of federal habeas corpus
counsel, filed by counsel on behalf of petitioner Charles Ray
Hicks. (Doc. 1.) For the reasons that follow, the motion
(Doc. 1) will be granted.
is a state prisoner who has been sentenced to death following
his 2014 convictions for first degree murder and related
charges in the Court of Common Pleas of Monroe County,
Pennsylvania. On March 28, 2017, the Supreme Court of
Pennsylvania affirmed petitioner's convictions and death
sentence. Commonwealth v. Hicks, 156 A.3d 1114 (Pa.
2017). Petitioner's timely petition for writ of
certiorari was denied on October 2, 2017. Hicks v.
Pennsylvania, No. 16-9657, Order (U.S. Oct. 2, 2017).
now wishes to file a counseled petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his state convictions and sentence.
Consequently, petitioner is seeking appointment of counsel
pursuant to McFarland v. Scott, 512 U.S. 849 (1994)
and 18 U.S.C. § 3599(a)(2). Section 3599 provides, in
In any post conviction proceeding under section 2254 or 2255
of title 28, United States Code, seeking to vacate or set
aside a death sentence, any defendant who is or becomes
financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary services
shall be entitled to the appointment of one or more attorneys
and the furnishing of such other services in accordance with
subsections (b) through (f) [(relating to conditions of
appointment)]. 18 U.S.C. § 3599(a)(2).
McFarland, the United States Supreme Court construed
this statutory right to counsel to include the right to legal
counsel prior to the filing of a formal federal habeas corpus
petition and held that “a 'post conviction
proceeding' within the meaning of [§ 3599(a)(2)] is
commenced by the filing of a capital defendant's motion
requesting the appointment of counsel for his federal habeas
corpus proceeding.” McFarland, 512 U.S. at
856-57. Accordingly, once a capital defendant files a motion
requesting appointment of counsel, as petitioner has done in
this case, he is granted “a mandatory right to
qualified legal counsel.” Id. at 854. This
right to counsel “necessarily includes a right for that
counsel meaningfully to research and present a
defendant's habeas claims.” Id. at 858.
The Supreme Court cautioned that “[w]here this
opportunity is not afforded, '[a]pproving the execution
of a defendant before his [petition] is decided on the merits
would clearly be improper.'” Id. (quoting
Barefoot v. Estelle, 463 U.S. 880, 889 (1983)).
Here, because the court concludes that petitioner is
indigent, (Doc. 2-3), and the Office of the Federal Public
Defender for the Middle District of Pennsylvania Capital
Habeas Unit (“Middle District CHU”) has
demonstrated that it possesses the special expertise in
capital jurisprudence and thereby qualifies for appointment
as capital habeas counsel under the standards set forth in 18
U.S.C. § 3599(a)(2), the court will grant
petitioner's motion for appointment of the Middle
District CHU as counsel.
petitioner informs the court that his federal habeas petition
is due to be filed on October 2, 2018, or one (1) year after
the completion of his direct appeal. See 28 U.S.C.
§ 2244(d)(1)(A). Petitioner suggests that, rather than
issuing a scheduling order at this time, the court require
counsel for petitioner to file a status report in 180 days
apprising the court of the procedural posture of any of
petitioner's state court proceedings or other pertinent
matters. The court agrees with this suggestion.
this 30th day of November, 2017, for the reasons set forth
herein, it is hereby ORDERED that:
motion for leave to proceed in forma pauperis (Doc. 1) is
GRANTED. See 28 U.S.C. § 1915(a)(1).
motion to appoint counsel (Doc. 1) is GRANTED. The Federal
Public Defender for the Middle District of Pennsylvania
Capital Habeas Unit is APPOINTED to represent petitioner
Charles Ray Hicks in the captioned action. See 18
U.S.C. § 3599(a)(2); see also id. §
Counsel for petitioner shall file a status report apprising
the court of the procedural posture of petitioner's state
court proceedings and any other pertinent matters on or
before May 29, 2018, and every ...