IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-70001

WILLIAM SPEER,

Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In Martinez v. Ryan1 and Trevino v. Thaler2 the Supreme Court held that 

a habeas petitioner’s procedural default of an ineffective assistance of trial 

counsel claim could be excused by a federal habeas court if, under certain 

circumstances, the petitioner received ineffective assistance of counsel during 

the state collateral review process.3 

1 132 S. Ct. 1309 (2012).

2 133 S. Ct. 1911 (2013).

3 See Martinez, 132 S. Ct. at 1318-19; Trevino, 133 S. Ct. at 1921.

 

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Now pending before this court is a motion by the petitioner’s federal 

habeas counsel to withdraw as counsel. Counsel argues that because he also 

represented the petitioner during state habeas proceedings, it would be a 

conflict of interest for him to now determine whether his state conduct was 

ineffective. Speer also requests the appointment of new counsel to investigate 

whether he has any viable claim under the rule established in Martinez and 

Trevino. 

We do not read the Supreme Court’s narrowly crafted decisions in 

Martinez or Trevino to require in this case the appointment of additional 

federal habeas counsel. Those cases provide only that the federal habeas court 

is not procedurally barred from hearing a prisoner’s ineffective assistance of 

trial counsel claim if the petitioner’s state habeas counsel was constitutionally 

ineffective.4 They do not create a constitutional right to counsel on collateral 

review. They only offer remedial relief from procedural bars to the 

presentation of federal claims attending that defective performance.5

It is said that the petitioner is entitled to counsel on habeas review and 

that means conflict-free counsel. That there is no such constitutional right to 

counsel on collateral review aside, the petitioner enjoyed that right. The 

lawyer here had no conflict in arguing the constitutional claim of ineffective 

4 See Martinez, 132 S. Ct. at 1320 (emphasizing the “limited nature” of the exception 

to the procedural default rule); see also Trevino, 133 S. Ct. at 1922 (Roberts, C.J., dissenting) 

(“We were unusually explicit about the narrowness of our decision [in Martinez].”).

5 We also do not interpret the Supreme Court’s recent decision in Christeson v. Roper, 

135 S. Ct. 891 (2015), as supporting appointment of new or additional counsel for Speer. The 

Court considered whether to appoint new counsel when the possible claim of ineffective 

assistance of counsel had already been identified. The default was the failure of state habeas 

attorneys to contact their client until after the time for filing for habeas had expired; that 

delay made equitable tolling the only possible avenue for relief, which required arguing their 

own ineffectiveness. Id. at 892-93. Substitute counsel therefore needed to be appointed. Id. 

at 895-96. The obvious distinction is that Speer seeks counsel to search the record for 

whether there was any as-yet-unidentified default by state habeas counsel.

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trial counsel to the federal court. It signifies that the petitioner continues to 

enjoy all the rights Martinez and Trevino afford. 

The petitioner’s present lawyer is conflicted only in the sense that every 

lawyer charged to examine the performance of counsel is conflicted in that task 

when the performance is his own. That has no bearing on counsel’s charge to 

argue the substantive claim of ineffective assistance of trial counsel. We do 

not read the Supreme Court as requiring a second federally appointed lawyer 

to plow the same ground ably plowed by the first federally appointed lawyer 

with no suggestion or hint of any shortcoming on his part. By this manner of 

reason there is no end to the succession of potential appointments, for each 

previous lawyer might have been ineffective.

Though we do not interpret Martinez or Trevino as creating the right to 

new counsel that Speer insists those cases do, our task is not done. 18 U.S.C. 

§ 3599 authorizes federal judges to appoint counsel for indigent federal habeas 

defendants in capital cases.6 We may also appoint supplemental counsel in

federal habeas proceedings.7 We conclude that this authority should be used 

in the present case in the interest of justice. Under that power, and mindful of 

the systematic benefits of efficiently resolving all potential claims as early in 

the habeas process as possible, we direct the appointment of supplemental 

counsel for the sole purpose of determining whether Speer has additional 

habeas claims that ought to have been brought. 

The congressional grant of appointment power in habeas cases came in 

response to the challenges petitioners face in the complex and difficult law of 

the death penalty. This authority enables federal appointments of separate 

counsel for state and federal habeas, an answer to today’s perceived problem. 

6 18 U.S.C. § 3599(a)(2).

7 Id. (court may appoint “one or more attorneys”).

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In a case like this one, where present counsel has been actively engaged in this 

litigation for several years, and moves only late in the process for new counsel,

that second appointment in the discretion of the district court may be of 

counsel who, while independent, counsel, would benefit from the often rich 

resource of the counsel who has been through the state habeas process and who 

has prosecuted the federal habeas action with no hint of inability.8 Such action 

is faithful to Congress’s clear intent to promote continuity of representation in 

federal habeas actions.9

We support this practical answer in service of the larger goals of finality 

and federalism even though for now its dress is not unlike a solution in search 

of a problem. We note in passing that we do not know whether the quality of 

representation by state habeas counsel who have subsequently been appointed 

as federal habeas counsel will result in such number of claims of ineffective 

assistance of counsel claims as to justify to justify this belt-and-suspenders 

treatment, with its attendant problems of coordination and inefficiencies 

between the two attorneys, trade-offs which do the petitioner no service.10 This

8 Here, for example, the underlying constitutional violations alleged in the habeas 

petition were a speedy trial and Brady claim. No ineffectiveness of trial counsel claims were 

raised either at the federal district court or before our court. 9 See 18 U.S.C. § 3599(e) (“Unless replaced by similarly 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.”). Under the plain text of the statute, existing counsel must continue unless 

excused by the court, which we decline to do in this instance, in light of the fact that any 

conflict appears to have been cured by the appointment of supplemental counsel to address a 

specific legal question: whether any procedural default of ineffective assistance of trial 

counsel claims by state habeas counsel may be excused. 10 At the onset of the federal habeas litigation, the district judge may, of course, 

appoint as single federal habeas counsel a lawyer who did not participate in the state habeas 

action. We appoint limited, supplemental counsel here so as not to lose the benefits and 

expertise of existing counsel, with all the inefficiencies that transition in representation 

would entail.

Our decision addresses the universe of cases where petitioner’s counsel in his federal 

petition was also his state habeas counsel. We do not reach, and express no opinion on, the 

separate question of whether the federal district judge should appoint the lawyer who 

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empirical question is, in any event, beyond the scope of our decision. Its answer 

must lie in the United States District Courts, informed by their own 

experiences.

We express no opinion on whether any new claims would be barred by 

the Antiterrorism and Effective Death Penalty Act.11 New claims, if any, must 

be resolved by the district court in the first instance. 

Construing present counsel’s motion to withdraw as a motion for the 

appointment of supplemental counsel, we GRANT the motion for the 

appointment of new supplemental counsel. Because the claims he brings are 

yet unresolved, we DENY the motion of present counsel to withdraw. We 

REMAND THIS CASE IN PART to the district court solely to appoint 

supplemental counsel consistent with this opinion and the requirements of 18 

U.S.C. § 3599, and to consider in the first instance whether Speer can establish 

cause for the procedural default of any ineffective-assistance-of-trial-counsel 

claims pursuant to Martinez and Trevino that he may raise, and if so, whether 

those claims merit relief. We retain jurisdiction in the remainder of the case 

and STAY proceedings pending the conclusion of the district court’s review.

prosecuted the state collateral review as federal counsel at the beginning of the federal 

habeas action. 11 See 28 U.S.C. § 2254.

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PRISCILLA R. OWEN, Circuit Judge, concurring:

I concur in the appointment of additional counsel essentially for the 

reasons set forth in my concurring opinion in Mendoza v. Stephens, No. 12-

70035, -- F.3d -- (5th Cir. 2015) (OWEN, J. concurring).

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