FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD GONZALES

SAMAYOA,

Petitioner-Appellant,

v.

RON DAVIS, Warden of the

California State Prison at San

Quentin,

Respondent-Appellee.

No. 18-56047

D.C. No.

3:00-CV-02118-W-AJB

OPINION

Appeal from the United States District Court

for the Southern District of California

Thomas J. Whelan, District Judge, Presiding

Argued and Submitted March 12, 2019

San Francisco, California

Filed July 3, 2019

Before: William A. Fletcher, Paul J. Watford,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge W. Fletcher;

Dissent by Judge Watford
2 SAMAYOA V. DAVIS

SUMMARY*

Appointment of Counsel

The panel reversed the district court’s denial of a motion,

brought by a California death-row prisoner seeking state

clemency, for the appointment of additional counsel from the

Federal Public Defender Services for the District of Arizona,

and remanded.

The panel held that the availability of state-appointed

clemency counsel does not prevent the district court from

appointing additional clemency counsel under 18 U.S.C.

§ 3599 for purposes of state clemency proceedings. The

panel remanded for the district court to determine whether

appointment of additional counsel to represent petitioner is

appropriate under the statute.

Dissenting, Judge Watford wrote that the majority’s

apparent reading of 18 U.S.C. § 3599(a)(2), which requires

that an inmate show that he is “financially unable to obtain

adequate representation,” as requiring petitioner to show only

that he is indigent, cannot be squared with Harbison v. Bell,

556 U.S. 180 (2009), where the Supreme Court declared that

an inmate’s state-furnished representation may render him

ineligible for appointment of counsel under § 3599,

notwithstanding his indigency.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SAMAYOA V. DAVIS 3

COUNSEL

Glen P. Niemy (argued), Salem, Massachusetts, for

Petitioner-Appellant.

Robin H. Urbanski (argued) and Annie Featherman Fraser,

Deputy Attorneys General; Holly D. Wilkens, Supervising

Deputy Attorney General; Julie L. Garland, Senior Assistant

AttorneyGeneral; Gerald A. Engler, Chief Assistant Attorney

General; Office of the Attorney General, San Diego,

California; for Respondent-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

We are asked to decide in this case whether 18 U.S.C.

§ 3599 permits federal appointment of additional counsel to

represent a California death-row prisoner who is seeking state

clemencywhere the State of California also provides for state

clemency counsel. We have jurisdiction under 28 U.S.C.

§ 2253 and we conclude the statute so permits. We remand

to the district court to determine whether appointment of

additional counsel to represent Richard Samayoa is

appropriate under the statute.

I. Factual Background

Richard Samayoa was convicted in 1988 of a double

murder and sentenced to death. He exhausted all state

remedies when the California Supreme Court summarily

denied review of his state habeas petition in 2000. In 2001,

Glen Niemy, a sole practitioner, was appointed as Samayoa’s
4 SAMAYOA V. DAVIS

federal habeas counsel pursuant to a statute now codified at

18 U.S.C. § 3599(a)(2). In 2002, Niemy was also appointed

by the California Supreme Court “for purposes of all

postconviction proceedings in this court, and for subsequent

proceedings, including preparation and filing of a petition for

clemency with the Governor of California, as appropriate.”

Niemy, together with another attorney appointed in 2001,

represented Samayoa in his federal 28 U.S.C. § 2254 habeas

proceedings. The district court denied Samayoa’s habeas

petition in 2009. Samayoa v. Ayers, 649 F. Supp. 2d 1102

(S.D. Cal. 2009). A divided panel of this Court affirmed, 

Samayoa v. Ayers, 649 F.3d 919 (9th Cir. 2011), and the

Supreme Court denied certiorari, 132 S. Ct. 1564 (2012).

Niemy’s appointed federal habeas co-counsel left the

practice of law. Six years after the denial of certiorari, on

May 14, 2018, Samayoa, now represented only by Niemy,

moved in federal district court for the appointment of

additional counsel from the Federal Public Defender Services

for the District of Arizona (FPD-AZ). In the motion, Niemy

wrote that he had been working on Samayoa’s case alone on

a pro bono basis, “with the exception of a limited number of

hours compensated by the California Supreme Court,” but

could “no longer afford to do so.” He supplied a list of

“remaining tasks,” including a full clemency investigation

and petition, as well as the filing of petitions under Atkins v.

Virginia, 536 U.S. 304 (2002), and Ford v. Wainwright,

477 U.S. 399 (1986). He informed the court that he “has

never done a clemency proceeding and needs the expertise of

an agency accustomed to such a process.” He identified

FPD-AZ as such an agency and noted that FPD-AZ had

already appeared as clemency counsel in ten cases, including

three outside of Arizona and two as “co-counsel with [court-
SAMAYOA V. DAVIS 5

appointed] counsel.” Niemy also wrote that neither he nor

FPD-AZ was seeking separate federal funding as part of the

motion.

The district court denied Samayoa’s motion, concluding

that because California providesfor state-appointed clemency

counsel, “Petitioner does not appear to qualify for the

appointment of federal counsel under § 3599(a)(2).” The

court reasoned that “it seems appropriate to direct [the]

application [for additional counsel] to the court that

previously appointed counsel for [clemency] proceedings, in

this case the California Supreme Court.” Samayoa filed a

motion for reconsideration, which the district court also

denied.

Samayoa timely appealed.

II. Legal Background

The statute at issue, 18 U.S.C. § 3599, provides for

federal appointment and compensation of counselfor indigent

defendants in capital cases. Section 3599(a)(1), which

provides for federal appointment of trial and sentencing

counsel, applies only to federal defendants. See Harbison v.

Bell, 556 U.S. 180, 186 (2009). Section 3599(a)(2) provides

for federal appointment of counsel for death-row petitioners

seeking federal habeas relief, whether the petitioner was

convicted in state or federal court:

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
6 SAMAYOA V. DAVIS

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 sections (b)

through (f).

Section 3599(e) extends the appointment of such attorneys to

further proceedings:

Unless replaced bysimilarly qualified counsel

upon the attorney’s own motion or upon

motion of the defendant, each attorney so

appointed shall represent the defendant

throughout every subsequent stage of

available judicial proceedings, . . . and shall

also represent the defendant in such

competency proceedings and for executive or

other clemency as may be available to the

defendant.

(Emphasis added.) Section 3599(f) provides that once federal

habeas counsel has been appointed, he or she can seek

“investigative, expert, or other services . . . reasonably

necessary for the representation of the defendant.”

In Harbison v. Bell, 556 U.S. 180 (2009), the Supreme

Court held that an attorney’s representation under § 3599(e)

includes state clemency proceedings. In that case, a

petitioner’s federal habeas counsel sought to expand the

scope of her representation after “the Tennessee Supreme

Court held that state law does not authorize the appointment

of state public defenders as clemency counsel.” Id. at 182. 

The Supreme Court framed the question as “whether
SAMAYOA V. DAVIS 7

18 U.S.C. § 3599 authorizes counsel appointed to represent

a state petitioner in 28 U.S.C. § 2254 proceedings to represent

him in subsequent state clemency proceedings.” Id.

at 183–84.

Beginning with a “straightforward reading of the statute,” 

at 185, the Court concluded, “Because state clemency

proceedings are ‘available’ to state petitioners who obtain

representation pursuant to subsection (a)(2), the statutory

language indicates that appointed counsel’s authorized

representation includes such proceedings.” Id. at 185–86. 

The Court noted that “Congress’ sequential enumeration” in

§ 3599(e) “emphasizes continuity of counsel.” Id. at 193. 

The Court posited that “Congress likely appreciated that

federal habeas counsel are well positioned to represent their

clients in the state clemency proceedings that typically follow

the conclusion of § 2254 litigation” because “the work of

competent counsel during habeas corpus representation may

provide the basis for a persuasive clemency application.” Id. 

The Court noted that, in Harbison’s case, habeas counsel had

uncovered a Brady violation that, although procedurally

defaulted, could “be marshaled” in a state clemency

application. Id.

The government had argued that the Court’s reading

“would require a lawyer who succeeded in setting aside a

state death sentence during postconviction proceedings to

represent her client during an ensuing state retrial.” Id. at

189. The Court wrote that the government overstated the

“unacceptable results” that would follow from its reading of

the statute. Id. at 188. It wrote that a retrial following habeas

relief is “not properly understood as a ‘subsequent stage’ of

judicial proceedings but rather as the commencement of new
8 SAMAYOA V. DAVIS

judicial proceedings” and therefore outside the scope of

§ 3599(e). Id. The Court continued,

Moreover, subsection (a)(2) provides for

counsel only when a state petitioner is unable

to obtain adequate representation. States are

constitutionally required to provide trial

counsel for indigent defendants. Thus, when

a state prisoner is granted a new trial

following § 2254 proceedings, his statefurnished representation renders him

ineligible for § 3599 counsel until the

commencement of new § 2254 proceedings.

Id.

In conclusion, the Court held “that § 3599 authorizes

federally appointed counsel to represent their clients in state

clemency proceedings and entitles them to compensation for

that representation.” Id. at 194.

III. Discussion

The California Attorney General’s Office (hereinafter

“State”) argues that the district court can appoint additional

counsel under § 3599 only if Samayoa can show “he is unable

to obtain adequate representation from the state to pursue

executive clemency.” We disagree. A district court’s

interpretation of a statute is a question of law which we

review de novo. Carson Harbor Vill., Ltd. v. Unocal Corp.,

270 F.3d 863, 870 (9th Cir. 2001) (en banc).
SAMAYOA V. DAVIS 9

A. Niemy’s Federal Appointment

To start, it is uncontested that Niemy remains Samayoa’s

federally appointed counsel and represents Samayoa in his

state clemency proceedings pursuant to that appointment. 

Niemy’s status as clemency counsel frames the question

before us—whether additional clemency counsel may be

appointed pursuant to § 3599.

The availability of state appointment of clemencycounsel

is irrelevant to federally appointed counsel’s ongoing

representation of a death-row client in state clemency

proceedings. Harbison instructs that the “straightforward”

reading of § 3599(e) controls. 556 U.S. at 185. That section

says that, unless replaced, federally appointed habeas counsel

“shall represent the defendant . . . in such competency

proceedings and proceedings for executive or other clemency

as may be available to the defendant.” 18 U.S.C. § 3599(e)

(emphasis added). This language does not invite a blanket

exception if the state also provides for clemency counsel.

We disagree with the Sixth Circuit’s holding to the

contrary in Irick v. Bell, 636 F.3d 289 (6th Cir. 2011). In

Irick, the Sixth Circuit held that a Tennessee death-row

inmate’s federal habeas counsel could not receive federal

funding to represent his client in several state court

proceedings identified in § 3599(e) because state law

provided for appointment of counsel in those proceedings. 

Id. at 290. The Sixth Circuit wrote, “In Harbison, the

Supreme Court arrived at its holding only after noting that

state law did not authorize the appointment of state public

defenders for the purpose of pursuing state clemency

proceedings.” Id. at 291. We find this reasoning

unpersuasive. The Court in Harbison did note at the outset
10 SAMAYOA V. DAVIS

that Tennessee did not provide for clemency counsel. 

Harbison, 556 U.S. at 182. But that fact was provided as part

of the Court’s opening narrative to explain how the case

arose. See id. Nowhere in the Court’s statement of the

question on certiorari or in its discussion of the case did it

condition the scope of § 3599(e) on the state’s failure to

provide clemency counsel.

Harbison’s discussion of why Congress intended

§ 3599(e) to include state clemency proceedings supports the

plain reading of the text. One of Harbison’s primary

rationales was that habeas counsel is uniquely positioned to

advocate for clients in subsequent proceedings. Harbison

emphasized “continuity of counsel,” noting that “the work of

competent counsel during habeas corpus representation may

provide the basis for a persuasive clemency application.” Id.

at 193. Harbison was thus concerned with not only whether

a petitioner was represented in clemency proceedings, but

also by whom.

Indeed, this case mirrors Harbison in illustrating the

benefit of continuity of counsel. In Harbison, the Court noted

that federal habeas counsel had uncovered a Brady violation

that, though defaulted and not a ground for habeas relief,

“could be marshaled” in a state clemency application. Id. 

Similarly, here, Judge Reinhardt’s dissent in Samayoa’s

earlier appeal discusses new mitigation evidence uncovered

by habeas counsel about Samayoa’s “unimaginably horrific”

upbringing. Samayoa, 649 F.3d at 930. Though the evidence

did not lead to habeas relief, it is precisely the type of

evidence that “could be marshaled” in a state clemency

application. Harbison, 556 U.S. at 193. Harbison’s

emphasis on the importance of continuity of counsel is

particularly salient here, confirming that continuing
SAMAYOA V. DAVIS 11

representation by habeas counsel under § 3599(e) should not

depend on whether a State simultaneously provides for the

appointment of clemency counsel. See id.

As applied to Niemy, Harbison is clear—Niemy is

authorized under § 3599(e) to continue to represent Samayoa

in his California clemency petition, regardless of any

provisions under California law regarding state appointment

of clemency counsel.

B. Appointment of Additional Counsel

We now turn to the operative question in this case: does

the availability of state-appointed clemency counsel prevent

the district court from appointing additional clemency

counsel under § 3599 during post-habeas proceedings?

Section 3599(f) permits federally appointed counsel to

seek “investigative, expert, or other services . . . reasonably

necessary for the representation of the defendant” in all

relevant stages of proceedings. Niemy has informed the court

that, due to his lack of experience with clemency petitions,

the appointment of FPD-AZ as additional counsel is

necessary for the adequate representation of his client. The

statute already contemplates that multiple attorneys may be

necessary for the representation of a death-row inmate. See

§ 3599(a)(2) (“[A]nydefendant who is or becomes financially

unable to obtain adequate representation . . . shall be entitled

to the appointment of one or more attorneys”) (emphasis

added). We conclude that § 3599(f) authorizes a court to

consider, upon the request of an attorney appointed under

§ 3599(a)(2), whether additional counsel is a “reasonably

necessary” service for the representation of a death-row

inmate at any stage of proceeding where the appointed
12 SAMAYOA V. DAVIS

attorney is authorized to represent the client pursuant to

§ 3599(e).

Section 3599(e) also contemplates that federal counsel

may be replaced in subsequent stages by “similarly qualified

counsel” upon a motion from the attorney or defendant. 

Niemy was originally appointed, along with another attorney,

in 2001. That second attorney has left the practice of law and

no longer represents Samayoa. The Fifth Circuit’s decision

in Battaglia v. Stephens, 824 F.3d 470 (5th Cir. 2016), is

instructive. In that case, the Fifth Circuit granted an inmate’s

motion under § 3599 to substitute federal counsel for

purposes of state competency proceedings. Id. at 474. The

inmate’s federal habeas counsel had not officially withdrawn

his representation, but the court determined that he had

effectively abandoned his representation of Battaglia. Id. As

in Battaglia, the second attorney here has not officially

withdrawn, but has effectively abandoned representation of

Samayoa. It would therefore be appropriate for the district

court to replace her with FPD-AZ under § 3599(e), provided

FPD-AZ is “similarly qualified.”

Finally, even assuming as the dissent does that Samayoa’s

request for additional counsel triggers a new inquiry under

§ 3599(a)(2), that subsection does not reference stateappointed counsel. Section 3599(a)(2) instructs that “any

defendant who is or becomes financially unable to obtain

adequate representation . . . shall be entitled to the

appointment of one or more attorneys.” The only inquiry that

the statute requires is whether a petitioner is “financially

unable” to obtain adequate representation. The statute does

not bar the district court from appointing additional counsel

simply because a defendant can obtain representation

through other sources.
SAMAYOA V. DAVIS 13

Conclusion

We hold that state provisions for clemency counsel do not

bar the appointment of additional counsel under § 3599 for

purposes of state clemency proceedings. We remand to the

district court for further proceedings consistent with this

opinion.

REVERSED and REMANDED.

WATFORD, Circuit Judge, dissenting:

I agree with my colleagues that the scope of Glen

Niemy’s federal appointment under 18 U.S.C. § 3599 extends

to state clemency proceedings, and that the scope of his

representation is unaffected by California’s provision of

counsel for clemency purposes. Niemy’s request for

appointment of co-counsel, however, triggers a new inquiry

under § 3599(a)(2). That provision authorizes a federal court

to appoint “one or more attorneys” to represent a death-row

inmate in state clemency proceedings, but only if the inmate

can show that he is “financially unable to obtain adequate

representation” on his own. An inmate cannot make that

showing if the State itself, free of charge, has appointed

counsel capable of providing adequate representation.

If the California Supreme Court were to appoint the

Arizona Federal Public Defender’s Office to represent

Richard Samayoa in state clemency proceedings free of

charge, he would not be able to show that he is financially

unable to obtain adequate representation on his own. That is

why the district court sensibly concluded that Niemy must
14 SAMAYOA V. DAVIS

make his request for the appointment of co-counsel to the

California Supreme Court in the first instance. If that court

for whatever reason declines Niemy’s request, the district

court should then appoint co-counsel under § 3599(a)(2), as

Niemy has persuasively shown why Samayoa needs the

assistance of co-counsel to receive adequate representation in

his state clemency proceedings.

My colleagues appear to read subsection (a)(2) as

requiring Samayoa to show only that he is indigent in order

to be entitled to the appointment of co-counsel. That reading

does make some sense in light of the statute’s reference to the

inmate’s being “financially” unable to obtain adequate

representation. But in my view the majority’s reading cannot

be squared with the Supreme Court’s decision in Harbison v.

Bell, 556 U.S. 180 (2009), where the Court declared that an

inmate’s state-furnished representation may indeed render

him ineligible for appointment of counsel under § 3599,

notwithstanding his indigency. Id. at 189.