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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHARLES K. FOSTER,

Petitioner,

v. Case No.: 5:03cv108/MCR

Capital Case

JULIE L. JONES, Secretary, 

Florida Department of Corrections, 

et al, 

Respondents.

___________________________________/

O R D E R

Before this Court is an Expedited Motion for Appointment and Motion to

Permit Federal Defender Counsel to Exhaust Relief in State Court filed on behalf of

Petitioner by the Capital Habeas Unit (“CHU”) of the Federal Public Defender Office

for the Northern District of Florida. (ECF No. 61). The CHU seeks appointment as

substitute counsel and permission to exhaust relief in state court in light of Hurst v.

Florida, 136 S. Ct. 616 (2016), and Hall v. Florida, 134 S. Ct. 1986 (2014). 

Petitioner’s motion indicates that Respondent does not object to the CHU’s

appointment as substitute counsel but opposes granting the CHU permission to

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exhaust relief in state court. (See ECF No. 61 at 27). Respondent, however, has not

filed a response in opposition within the deadline required by the rules of this Court. 

See N.D. Fla. Loc. R. 7.1(E).

Substitution of Counsel

Petitioner, a death-sentenced inmate, filed an initial petition for a writ of

habeas corpus and a supplemental memorandum in support in 2003. (ECF Nos. 5,

15). Petitioner’s petition was dismissed as untimely in December of 2004, and a

certificate of appealabilitywas denied by thisCourt and by the EleventhCircuitCourt

of Appeals. (See ECF Nos. 28, 51, 57). While Petitioner currently has no litigation

pending in this Court, Mary Catherine Bonner was appointed and remains counsel of

record for Petitioner. (See ECF No. 7). According to Petitioner’s motion, Ms.

Bonner has indicated that she is unable to represent him in any future litigation in

either state or federal court. (ECF No. 61, 1-3). The CHU has specialized knowledge

and resources concerning capital litigation, and the Court finds that the interests of

justice require that substitute counsel be provided to Petitioner. See 18 U.S.C.

§ 3599(a)(2) and (e); see also Harbison v. Bell, 556 U.S. 180 (2009); Martel v. Clair,

565 U.S. 648, 657-62 (2012).

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Exhaustion of State Court Relief

This Court has permitted the CHU to represent petitioners in state court to

exhaust relief under Hurst when the petitioner had no available state counsel who

could furnish adequate representation. See Bailey v. Jones, Case No.

5:14cv333/MCR, ECF No. 51; Grim v. Jones, Case No. 3:08cv2/MCR, ECF No. 64;

Archer v. Jones, Case No. 3:06cv312/MCR, ECF No. 78. In addition to Ms.

Bonner’s unavailability,Petitioner’s priorstate-appointed counsel,JamesMcDermott,

died in 2009. Because Petitioner does not have available state counsel, the CHU may

represent Petitioner in exhausting claims under Hurst and Hall in state court as long

as a different attorney has not been appointed. If Petitioner is represented by a stateappointed attorney, the CHU may, and should, monitor state proceedings and

coordinate with Petitioner’s state attorney. 

Accordingly, IT IS ORDERED:

1. Petitioner’s Expedited Motion for Appointment and Motion to Permit

Federal Defender Counsel to Exhaust Relief in State Court, ECF No. 61, is

GRANTED. 

2. TheCapital Habeas Unit ofthe Office ofthe Federal Public Defender for

the Northern District of Florida, 227 N. Bronough Street, Suite 4200, Tallahassee,

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Florida, 32301, and Billy H. Nolas, specifically, are appointed as substitute counsel

for Petitioner pursuant to 18 U.S.C. § 3599. 

3. The Clerk’s Office is directed to remove Ms. Bonner from the list of

individuals who receive notice of electronic filing.

4. The Federal Public Defender CHU may represent Petitioner in state

exhaustion proceedingsin light of Hurst and Hall under the conditions set out in this

Order.

DONE and ORDERED this 31st day of March, 2017.

M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE 

Case No.: 5:03cv108/MCR

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