United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CHARLES STEVENS,

Petitioner,

 v.

RON DAVIS, Warden, San Quentin

State Prison

Respondent.

/

No. C 09-137 WHA

DEATH PENALTY CASE

ORDER GRANTING PETITIONER’S

MOTION TO WITHDRAW

CERTAIN CLAIMS FROM THE

PETITION

INTRODUCTION

Petitioner has filed his fourth motion to withdraw claims 13, 14, 17, 19, 20, 22, 26 and

27 from his petition. Petitioner cites counsel’s failure to get approval from him for the

contested claims and a lack of factual basis for them. For the reasons stated herein, petitioner’s

motion to withdraw certain claims from the petition is GRANTED.

STATEMENT

Petitioner is a condemned inmate at San Quentin State Prison. On January 12, 2009,

petitioner initiated the present habeas corpus action. Counsel for petitioner, Robert Bryan and

Mark Eibert, were appointed on February 9, 2012. Through his appointed counsel, petitioner

filed his Amended Petition for Writ of Habeas Corpus on May 21, 2014, asserting 28 claims.

Although represented by counsel, petitioner has now filed four motions in propria

persona and without the assistance of counsel. All of them sought to withdraw certain claims

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United States District Court

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on the grounds that petitioner did not authorize them, they lack merit, and they are unsupported

by the facts. The most recent such motion was filed on October 20, 2014 (Dkt. No. 74).

The Court dealt with the in propria persona filings in a variety of ways, including

the hiring of an independent attorney to meet with petitioner and his counsel to determine the

nature of any potential conflict. Those methods failed to resolve the issue, so on December 3,

2014, the Court held an ex parte hearing at San Quentin State Prison with petitioner and his

counsel to discuss the motions to withdraw certain claims from the petition and any other

existing or potential conflict. The transcript of that proceeding was sealed (Dkt. No. 92). As a

courtesy, respondent’s counsel attended the first and last parts of the proceeding (but not the

under seal part) and stood by in case their input was needed.

During the proceeding, Attorney Robert Bryan requested the opportunity to brief the

issue of whether petitioner had the authority to withdraw certain claims from the habeas

petition. That request was granted and respondent was given an opportunity to brief the issue as

well (Dkt. No. 83). The Court appointed special counsel, Attorney Lori Rifkin, to brief the

issue on petitioner’s behalf (Dkt. No. 87). Each party filed a brief on the issue (Dkt. Nos. 95,

96, and 102).

ANALYSIS

The challenged claims focus on sexual abuse that petitioner allegedly suffered as a child

and the resulting impact on his mental state. Petitioner denies any such abuse took place. 

Petitioner’s counsel assert that petitioner has dissociative amnesia and does not recall the

events. The crux of counsel’s argument against allowing petitioner to withdraw claims from his

petition is that counsel is responsible for determining how to litigate the case and selection of

claims fall within that scope of authority. They also argue that their professional duty requires

that they present all known constitutional claims, even over the objection of petitioner. 

Petitioner argues that he has the authority to make fundamental decisions about his case,

including determining which claims merit pursuit, and that he should be free to delete claims he

believes lack truth in order to preserve his credibility on other claims with more chances of

success.

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Respondent supports petitioner’s position that he has the authority to withdraw certain

claims from his petition. Respondent argues that counsel’s actions are constrained by the fact

that they serve as agents for petitioner and are, therefore, subject to his direction.

Section 2254 sets out the governing standards for when relief should be granted on “[a]n

application for a writ of habeas corpus on behalf of a person in custody.” 28 U.S.C. 2254(b)(1). 

While the statute indicates the possibility that a petition may be filed on behalf of a prisoner,

other statutory requirements and interpreting case law make clear that either the claims must be

authorized by a petitioner or the person filing on behalf of a petitioner must seek “next friend”

status if they intend to act in a manner not directly authorized by the petitioner.

Counsel are petitioner’s agents. See Maples v. Thomas, __ U.S. __, 132 S. Ct. 912, 922

(2012). In Maples, the Supreme Court noted that “the principal bears the risk of negligent

conduct on the part of his agent.” Ibid. (citing to Coleman v. Thompson, 501 U.S. 722, 754

(1991)). Coleman relied on the Restatement of Agency to set forth the nature of the relationship

between counsel and a petitioner, and the risk that a petitioner bears for counsel’s actions. As

respondent now notes, the Restatement (Third) of Agency 101 (2006), defines agency as “[t]he

fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another

person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the

principal’s control, and the agent manifests assent or otherwise consents so to act” (emphasis

added).

That counsel are mere agents for a habeas petitioner is underscored by the requirement

in Section 2242 that the petition be “signed and verified by the person for whose relief it is

intended or by someone acting in his behalf.” “[A] habeas petitioner’s attorney can sign and

verify the petition for petitioner. In the absence of evidence to the contrary, there is a

presumption that the petitioner has been fully informed of, and has consented to, claims raised

in the petition.” Lucky v. Calderon, 86 F.3d 923, 925 (9th Cir. 1996) (emphasis added, citation

omitted). In Lucky, petitioner’s attorney verified the petition on the prisoner’s behalf because

he had refused to see her when she visited, refused to answer her letters, and refused to return

any signed documents. The district court dismissed the petition as unauthorized and denied

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petitioner’s motion for reconsideration, despite the fact that it was filed with an affidavit

eventually supplied by the petitioner stating that his attorney was “authorized to file and pursue

this litigation or any other challenging my death judgment.” Lucky, 86 F.3d at 925. Our court

of appeals reversed because it found that with the affidavit, the petitioner had met his burden of

showing that the petition was authorized. Id. at 925–26.

Petitioner here could not be clearer about his insistence on dismissing claims 13, 14, 17,

19, 20, 22, 26 and 27 and his basis for doing so. He does not believe that there is any true

factual basis for these claims and he believes that pursuit of these claims could compromise his

credibility before the Court. While it is conceivably true, as counsel suggest, that petitioner has

repressed memories of alleged abuse suffered as a child, petitioner’s concern about the impact

of pursuing potentially non-meritorious claims remains reasonable and rational. Petitioner was

extensively questioned about his mental health at the December 3 hearing and his ability to

comprehend the consequences of withdrawing the challenged claims (Tr. 8–9, 56–58). Counsel

were in agreement that petitioner is competent to make this decision (Tr. 50, 55–56). Since

there are no legitimate competency concerns, his counsel serve as his agents and their role is to

assist him in the pursuit of claims that he, as the proponent of the litigation, wishes to pursue. 

It is well-settled that a petitioner, so long as he is not incompetent, retains the right to

withdraw his habeas petition in its entirety, or to dismiss any appeal of a denial of relief or

petition for certiorari. See Rees v. Peyton, 384 U.S. 312, 314 (1966). If he can do the greater,

he surely can do the lesser included. It strains reason to believe that petitioner must dismiss all

to avoid dismissing certain claims on which his counsel persist. 

Moreover, in this matter, petitioner’s failure to sign the verification is significant. 

Attorney Bryan signed the verification using much the same language used in Lucky, that the

“matters are more within [counsel’s] knowledge than [petitioner’s]” (Am. Pet. 307). He also

relied on the fact petitioner lived in another county, saying that getting him to sign the

verification would have resulted in delay (ibid).

Ordinarily, counsel’s signature on the verification would not have become an issue,

except for the fact that petitioner has repeatedly noted in his in propria persona filings that he

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did not sign the verification and that he does not approve the pursuit of the contested claims. 

Following Lucky, claims 13, 14, 17, 19, 20, 22, 26 and 27 cannot be allowed to remain a part of

the petition. They are not authorized and, therefore, must be dismissed.

The Court is, however, satisfied from petitioner’s in propria persona filings and the

December 3 hearing that petitioner has authorized all of the other claims. There is no basis to

dismiss the rest of the petition as unauthorized. See Lucky, 86 F.3d at 925-26. 

CONCLUSION

Petitioner’s in propria persona motions serve as sufficient evidence that counsel are not

authorized to pursue claims 13, 14, 17, 19, 20, 22, 26 and 27. Since petitioner did not sign the

verification, these claims are not authorized and are not properly before the Court. These

claims must be dismissed. Petitioner’s assent to the other claims serves as sufficient evidence

that they are authorized and a signed verification by petitioner is not necessary.

Even if petitioner had signed the verification, counsel serve as his agents and, as such,

must assent to act in accordance with petitioner’s rational and reasonable wishes regarding the

litigation, subject only to their professional obligations. Petitioner, therefore, has the right to

request that his counsel dismiss claims that he believes are non-meritorious and counsel are

required to act accordingly. No professional standard requires counsel to press issues the client

refuses to litigate and desires not to be litigated for normal and reasonable reasons.

For these reasons, claims 13, 14, 17, 19, 20, 22, 26 and 27 are dismissed from the

petition.

The Clerk shall also serve a copy of this order directly on petitioner.

IT IS SO ORDERED.

Dated: March 12 , 2015. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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