F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R I C H A R D G O N Z A L E S S A M A Y O A , Petitioner-Appellant

,

v.

R O N D A V I S , W arden of the California State Prison at San Quentin, Respondent-Appellee. No. 18-56047

D.C. No. 3:00-CV-02118-W -AJ B

OPI N I ON

A ppeal from the United States District Court for the Southern District of California Thomas J . W helan, District J udg e, Presiding

Arg ued and Submitted March 12, 2019 San F rancisco, California

F iled J uly 3, 2019

B efore: W illiam A. F letcher, Paul J

. W atford, and Andrew D. Hurwitz

, Circuit J udg es.

Opinion by J udg e W . F letcher; Dissent by

J udg e W atfordS A M A Y O A V

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V I S 2

SUMMARY *

Appointm ent of Counsel

The panel reversed the district court’s denial of a motion, broug ht by a California d eath-row p risoner seeking state clemency

, for the appointment of additional counsel from the F ederal Public Defender Services f or the District of Ariz ona, and remanded.

The panel held that the availability of state-appointed clemency counsel does not prevent the d i s trict court from appointing addition a l clemency counsel under 18 U .S.C. § 3599 f or p urposes of state c l e mency proceeding s. The panel remanded for the d istrict court to determine whether
appo i ntment of additional counsel to represent petitioner is appropriate under the statute.

Dissenting

, J udg e W atford wrote that the ma jority ’s apparent r eading of 1 8 U.S.C. § 3599(a)(2), w hich requires that an inmate show that h e is “financially unable to obtain adequate representation,” as requiring petitioner to show only that h e is indig ent, cannot be squared with Harbison v. B ell

, 556 U.S. 1 80 (2009), where the Supreme Court declared that

an inmate’s state-furnished representation may rende r him inelig ible for appointment of co u n s e l under § 3599, notwithstanding his indig ency

.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S A M A Y O A V

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V I S 3

COUNSEL

Glen P. N iemy (arg

u ed), Sa l e m , Massachusetts, for Petitioner-Appellant.

Robin H. Urbanski (arg

ued) and A n nie F eatherman F raser, Deputy Attorney s General; H olly D. W i lkens, Supervising Deputy Attorney General; J ulie L

. Garland, Senior Assistant Attorney General; Gerald A. Eng ler, Chief Assistant Attorney General; Of

f ice of the Attorney General, San Dieg o, California; for Respondent-Appellee.

OP INION

W

. F L ETCHER, Circuit J udg e:

W e 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 clemency where the State of California also provides for state clemency c o u n s e l. W e have jurisdiction under 28 U .S.C. § 2253 and we conclude the statute so permits. W e r em a n d
to the district court to d etermine whether appointment o f additional counsel to represent Ri c hard Samay oa is appropriate under the statute.

I . F actual B ackg round

Ri c h a r d Samay oa was convicted in 1988 of a double murder a nd sentenced to death. H e e x hausted all state remed ies when the California Supreme Court summarily denied r eview of his sta t e h a b eas petition in 2000. I n 2001, Glen Niemy

, a sole practitioner, was appointed as Samay oa’sS A M A Y O A V

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federal habeas co u n s e l p u rsuant to a statute now codified at 18 U.S.C. § 3599(a)(2). I n 2002, N iemy was also appointed by the California Supreme Court “for purpos e s o f all postconviction proceeding s in this court, and for subsequent proceeding s, including preparation and f iling of a petition for clemency with the Governor of California, as appropriate.”

Niemy

, tog ether with another attorney appointed in 2001, represented Samay oa in his federal 28 U.S.C. § 2254 h abeas proceeding s. T he district court denied Samay oa’s h abeas petition in 2009. Samayoa v. A yers , 6 49 F

. Supp. 2d 1102 (S.D

. Cal. 2 009). A divided panel of this Court affirmed, Samayoa v. A

y e r s , 6 49 F

. 3d 919 (9th Cir. 2011), and the Supreme Court denied certiorari, 132 S. Ct. 1564 (2012).

Niemy ’s appointed federal habe a s c o-counsel left the practice of law. S i x y e ars a fter the d enial of certiorari, on May 14, 2018, Samay oa, n ow represented only b y N i emy , moved in federal district court for the appoint m e n t o f additional counsel from the F ederal Public Defender Services for the District of Ariz ona (F PD-AZ ). I n the motion, Niemy wrote that he had been working on Samay oa’s case alone on

a pro bono basis, “with the ex ception o f a limited number o f hours compen sated by the California Supreme Court,” but could “ no long er afford to do so.” He suppl i e d a list o f “remaining tasks,” including a f ull clemency investig ation and petition, as well as the filing of petitions under Atkins v. Vi r g inia
, 5 36 U.S. 304 (2002), and Ford v. W ainwright

, 477 U.S. 399 ( 1 9 8 6). He informed the court that he “has

never done a clemency proceeding and needs the ex p ertise o f

an ag e ncy accustomed to such a process.” He id e n t i f i ed F PD-AZ as such an ag ency and not ed that F PD-AZ h ad already appeared as clemency counsel in ten cases, including three outside of Ariz ona and two as “co-counsel with [ court-S A M A Y O A V

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a p p o i n t ed] counsel.” Niemy also wrote that neither he n o r FP D-AZ was seeking separate federal funding as part o f t h e motion.

The d istrict court denied Samay oa’s motion, concluding that because California p r o v i d e s for state-appointed clemency counsel, “Petitioner does not appear to qualify for the appoin t m e n t of federal c ounsel under § 3599(a)(2).” The
court reasoned that “it seems appropriate to dir e ct [ the] application [for additional counsel] t o the court that previously a

ppointed counsel for [ c lemency] p r oceeding s, in this case the California Supreme Court.” Samay oa filed a motion for reconsideration, which the district court also denied.

Samay oa timely

appealed.

I I

. L eg a l B ackg round

The statute at issue, 18 U .S.C. § 3599, p rovides for federal a ppointment and compensation o f c o u n s e l f o r indig ent de fendants 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 f o r death-row petitioners seeking federal habeas relief, whether the pet i t i oner was convicted in state or federal court:

I n any post conviction proceeding under section 2254 or 2255 of title 28, U nited States Code, seeking to vacat e o r set a side a death sentence, any defendant who is o r b ecomes f i n an c i a l l y unable to o b t a i n a d e q u a t eS A M A Y O A V

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representati o n or investig ative, ex pert, o r othe r reasonably necessary services shall be entitled to the appointme n t o f one or more attorney s and t he furnishing of such other services in a c cor d a nce with sections (b) throug h (f).

Section 3599(e) ex tends the appointment of such attorney s to further proceeding s:

Unless replaced by similarly qualified counsel
upon the attorney ’s own motion or upon motion of the defendant, ea c h attorney so appointed shall represent the defendant
t h r o u g h o ut every subsequent sta ge o f

a v a ilable judicial proceeding s,

. . . and shal l also repr es ent the defendant in such competency p roceeding s and for executive or other clemency as ma

y b e available to the defendant

. (Emphasis added.) Section 3599(f) provides that once federal habeas counsel has been appointed, h e or she can seek “investig ative, ex p ert, or other s ervices

. . . reasonably
necessary for the representation of the defendant.”

I n H arbison v. Bell

, 556 U.S. 180 (2009), the Supreme Court held that an attorney ’s representation under § 3599(e) includes state clemency proceeding s. I n that case, a petitioner’s fed e ral habeas counsel soug ht to ex pand the
scope of her r epresentation after “the T ennessee Supreme Court held that state law does not a u thoriz e the appointment of state p ublic defenders as clemency c o u n sel.” Id. at 182. The Supreme Co u rt framed the question as “whetherS A M A Y O A V

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1 8 U.S.C. § 3599 a

uthoriz es counsel appointed to represen t

a state petitioner in 28 U.S.C. § 2254 proceeding s to represent him in subsequent s t a t e clemency proceeding s.” Id. at 183–84.

B e g inning with a “straig htforward reading of the statute,”
at 185, the Court concluded, “B ecau s e state clemency proceeding s are ‘available’ to state petitioners who obtain representatio n pursuant to subsection ( a)(2), the statutory lang uag e indicates that appointed coun s e l ’s authoriz ed representation includes such proceeding s.” Id. a t 185–86. The Court noted that “Cong r ess’ sequential enumeration” in § 3599(e) “emphasiz es continuity of counsel.” I d

. at 193. The Court posited that “Cong ress likely appreciated that federal habeas counse l a r e well positioned to represent their clients in the state clemency proceeding s that ty pically f ollow the conclusion of § 2254 litig ation” b e c ause “the work o f competent counsel during habeas c orpus representation may provide the b asis for a persuasive clemency application.” Id. The Court noted that, in Harbison’s case, habeas counsel h ad

u ncovered a B rady violation that, althoug h procedura l l y defaulted, c ould “be marshaled” in a state clemency application. Id.

The g o vernment had arg ued t h a t t he Court’s r eading “wou l d r equire a lawy er who succeeded in setting aside a state death sentence d

u ring postconviction pro c e e ding s to represent her client d

uring a n ensuing state retrial.” Id. at 189. The Cou r t wrote that the g overnment o verstated the “unacceptable results” that would follow from its reading of the statute. Id. at 188. I t wrote that a retrial following h abeas relief is “not properly u n d erstood as a ‘subsequent stag e’ o f judicial proceeding s but rather as the commencement o f newS A M A Y O A V

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judicial proceeding s” and therefore outsi de the scope o f § 3599(e). Id. The Court continued,

Mo r eover, subsection ( a)(2) provides for counsel only w hen a state petitioner is unable
to obtain adequate rep r e sentation. States a re constitutionally required to provide trial

c o u n sel for indig ent defendants. Thus, when

a state prisoner is gr a n ted a new trial following § 2254 proceeding s, hi s statef u r n i s h e d r e p r e s e n t a t i o n r e n d e r s h i m inelig ible f

o r § 3599 counsel until the commencement of new § 2254 proceeding s.

Id.

I n conclusion, the Court h eld “that § 3 5 9 9 a uthoriz e s federally appointed counsel to represent their clients in state clemency proceeding s and entitles them to compensation for that representation.” Id. at 194.

I I I

. Discussion

The California A ttorney General’s Office (here i n a fter “State”) a rg ues that the district court can appoint additional counsel under § 3599 only if Samay oa can show “ he is unable
to obtain adequate representati o n f r om the state to pursue

ex e c u t i v e clemency .” W e disag r e e

. A district court’s interpretation of a statute is a question of law w h i c h we review de n ovo. Carson Harbor Vill., Ltd. v. Unocal Corp.

, 270 F .3d 863, 870 (9th Cir. 2001) (en banc).S A M A Y O A V

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A. Niemy ’s F ederal Appointment

To start, it is uncontested that Niemy remains Samay oa’s federally appointed cou n s e l and represents Samay oa in his
state clemency proceeding s pursuant to that appointme n t. Niemy ’s st a t us as clemency counsel frames the question before us—whether additional clemen cy counsel may be appointed pursuant to § 3599.

The availability of state appointment of clemency counsel is irrelevant to federally appointed counsel’ s o n g oing representation of a death-row client in state clemen cy p r o c e eding s. Harbison instructs that the “straig htforward” reading o f § 3599(e) controls. 556 U.S. at 185. That section
say s that, u nless replaced, f ederally appointed habeas counsel

“ shall represent the defend a n t

. . . in such competency proceeding s and proceeding s for ex ecutive or other clemency

as may be available to the defendant.” 18 U. S

. C

. § 3599(e) (emphasis added). This lang uag e does n o t i n v ite a b lanket

ex c e ption if the state also provides for clemency c ounsel.

W e disag ree w i th the Six th Circuit’s h o lding to the contrary in Irick v. Bell

, 6 3 6 F. 3 d 289 (6th Cir. 2 011). I n I r i ck

, the Six th Circuit held that a Tennessee death-r o w inmate’s federal habeas counsel could not re c e i v e federal funding to represent his client in several state court proceeding s identifi ed in § 3599(e) because state law provided for appointment of c ounsel in those pr oceeding s. Id. at 290. T he Six th Circuit w rote, “ I n H arbison

, the Supreme C o u r t a

rrived at its h olding only after noting that
state law did not authoriz e the appointment of state public d efenders f

or the purpose of pursuing state clemen c y p r o ceeding s.” Id. at 291. We find this reason i n g unpersuasive. The Court in Harbison did note at the out s etS A M A Y O A V

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that Tennessee did no t provide for clemency counsel. Harbison

, 556 U.S. at 182. B ut that fact was p rovided a s part of the Court’s opening narrative to ex plain how t h e case

a r o se. See id. Nowhere in the Court’s statement o f t h e question o n certiorari o r in its discussion of the c ase did it condition the scope of § 3 599(e) on the state’s fail u r e to provide clemency c ounsel.

Harbison ’s discussion o f why Cong ress intended § 3599(e) to include state clemency proceeding s supports the plain reading of the tex t. O ne of H a r b ison ’s primary rationales was that ha b e a s counsel is uniquely positioned to advocate for clients in subseque n t proceeding s. Harbison emphasiz ed “continuity o f counsel,” noting that “the w ork o f competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application.” Id.
at 193. Harbison w as thus concerned with not o nly whether

a petitioner was represented in cleme n cy proceeding s, but also by whom.

I ndeed, t h i s case mirrors Harbison in illustrating the benefit of continuity of counsel. I n Harbison

, the Court noted that federal habeas counsel had uncovered a Brady violation that, thoug h defaulted a

nd not a gr o u n d for habeas relief, “could be marshaled” in a state c lemency application. Id. Similarly

, h ere, J udg e Reinhardt’s d issent in Samay oa’s earlier appeal d iscusses new mitig ation evidence uncovered by habeas c ounsel about Samay oa’s “unimag inably horrific” upbring ing

. Samayoa
, 6 49 F .3d a t 930. T houg h the evidence did not lead to habeas relie f

, it is precisely the ty

pe o f evidence that “could be m a r s haled” in a state clemency

a p p l i cation. Harbison

, 556 U.S. a t 193. Harbison ’s emphasis on the importance of continuity of counsel is particularly salient here, con firming that continuingS A M A Y O A V

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representation by habeas counsel under § 3599(e) should not depend o n whether a S t a t e simultaneously p rovides f o r the appointment of clemency counsel. See id.

As applied to Niemy

, Harbison is clear—Niemy is authoriz ed u nder § 3599(e) to continue to represent Samay oa in his California clemency petition, reg ardless of any provisions u nder California law reg arding state appointment of clemency

counsel.

B . Appointment of Additional Counsel

W e now turn to the operative question in this case: does the availability of state-appointed clemency counsel prevent the district court f

r o m appointing additional clemency counsel under § 3599 during post-habeas proceeding s?

Section 3599(f) permits federally appoin ted c ounsel to seek “inves t i gative, ex pert, o r other services

. . . reasonably
necessary for the representation of the defendant” in all relevant stag es of proceeding s. Niemy has informed the court that, due to his lack of ex perie n c e w i t h clemency p etitions, the appointment of F PD-AZ as additional c ounsel is
necessary for the a d eq u ate representation of his client. The
statute a lready contempl a tes that multiple attorney s may be
necessary fo r t he representation of a death-row inmate. See § 3599(a)(2) (“[ A] ny defendant who is or becomes financially unable to obtain adequate r epresentation

. . . shall be entitled
to the appointment of one or more a tt o r n e y s”) (emphasis added). W e conclude that § 3599(f) authoriz es a c o u r t t o consider, u

pon the request of an attorney appointe d under § 3599(a)(2), whether additional counsel is a “reas o n ably
necessary ” service for th e r e p resentation of a death-row inmate at any stag e o f proceed i n g where the appointedS A M A Y O A V

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a ttorney is authoriz e d to represent the client pursuant t o § 3599(e).

S ection 3599(e) a lso contemplates that federal cou n s el
may be replaced in subsequent stag es by “similarly qualified counsel” u p o n a motion from the attorney or defendant. Niemy was orig inally appointed, along with another attorney , in 2 001. That second attorney has left the practice o f law a nd

no long e r rep r es e n ts Samay o a. The F ifth Circuit’s decision in Battaglia v. S

tephens

, 824 F .3d 470 (5th Cir. 2016), is instructive. I n that c a se, the F ifth Circuit g ranted a n inmate’s motion under § 3599 to substitute f ederal counsel for
p u r p oses of state c o mpetency proceeding s. Id. at 474. The inmate’s federal habeas counsel h ad not o fficially withdrawn his representation, b ut the court determined that he h ad effectively a

bandoned h is representation of B attag lia. I d. A s in Battaglia

, the second attorney he r e h a s not officially withdrawn, b ut h as effectively abandoned r epresentation o f Samay oa. I t would therefore be appropriate for the district
court to replace her with F PD-AZ under § 3599(e), provided F PD-AZ is “similarly

qualified.”

F inally

, even assuming as the dissent does that Samay oa’s request for a dditional c oun sel trig g ers a new inquiry under § 3599(a)(2), tha t s u

bsection does not r eference stateappointed counsel. Section 3599 ( a )(2) instructs that “any defenda n t w h o is or b ecomes financially unable to obtain ad equate representation

. . . shall be entitled to the appointment of one or more attorney s.” The only inquiry that the statute requires is whether a petitioner is “fin a ncially unable” to o btain adequate representation. The s tatute does
not b ar the district cou r t f r om appointing additional counsel simply because a d efe n d a n t can o b tain representation throug h other sources.S A M A Y O A V

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Conclusion

W e hold that state provisions for clemency counsel do not bar the appointment of a dditional counsel under § 3 599 for
purposes of state clemen c y proceeding s. W e remand to the district court for fur t h e r p roceeding s consistent w ith this opinion.

REVERSED and R EMANDED

.

W A TF ORD, Circuit J udg e, dissenting :

I ag ree with my colleag ues that the scope of G len Niemy ’s federal appointment under 18 U.S.C. § 3599 ex tends
to state clemency proceeding s, and that the scop e o f his representation is unaffected b y California’s provisi on o f counsel f

or clemency purposes. N iemy ’ s r e q uest for appointment of co-counsel, h owever, trig g ers a new in q u i ry under § 3599(a)(2). T hat provision authoriz es a federal court to appoint “one or more attorney s” to represent a d e ath-row inmate in state clemency

proceeding s, but only

if the inmate

can show that he is “ f

inancially u nable to obtain adequate representation” on his own. An inmate cannot make that showing if the State itself, free of charg e, ha s a p pointed counsel capable of providing adequate representation.

I f the Californ i a S u p reme Court were to appoint the Ariz ona Federal Public Defender’s Office to represent Richard Samay oa in s t a t e clemency proceeding s free o f charg e, he w ould n o t be able to show that he is financially unable to obtain adequate representation on his own. That is why the dis t r i c t court sensibly concluded that Niemy mustS A M A Y O A V

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make his request for the appointment of co-counsel to the California Supreme Court in the first instance. I f that court f o r whatever reason declines Niemy ’s request, the distr i ct court should then appoint co

- co u nsel under § 3599(a)(2), a s Niemy h as persuasively show n why Samay oa needs the assistance of c o-counsel to receive adequate representation in his state clemency

proceeding s.

My colleag ues appear to read s ubsection ( a)(2) a s requiring S amay oa to show only that he is indig ent in order
to be entitled to the appointment of co-counsel. That r eading does make some sense in lig ht o f the statute’s r eference to the inmat e’ s being “financially ” unable to obtain adequate representation. B ut in my v iew the majority ’s reading cannot be squared with the Supreme Court’s decision in Harbison v

. Bell

, 556 U.S. 180 (2009), w here the Court declared that an inmate’s state-furnished representat i o n may indeed render him inelig ible for appointment of cou nsel under § 3599, notwithstanding his indig ency

. I d. at 189.