paid to attorneys appointed under this subsection,” and thus it plainly compels payment of
compensation for clemency-related work that an attorney appointed under §848(q)(8) is required
to perform.

For these reasons, the Court has no hesitation in concluding that an attorney appointed to
represent a habeas corpus petitioner under a sentence of death is required to pursue state
clemency relief if it is available and desired by the petitioner, and that the attorney is entitled to
reasonable compensation for that work. In this regard, the Court agrees with the Eighth Circuit’s
decision in Hill v. Lockhart, 992 F.2d 801, 803 (8th Cir. 1993), and the decisions of at least three
district courts, see Cloutier v. Schomig, No. 00 C 5476 (N.D. Ill. June 12, 2002); Lowery v.
Anderson, 138 F. Supp. 2d 1123, 1125 (S.D. Ind. 2001); Strickler v. Greene, 57 F. Supp. 2d 313,
317-18 (E.D. Va. 1999). One Circuit has reached the opposite conclusion, see Clark v. Johnson,
278 F.3d 459, 462 (Sth Cir. 2002), and another concluded in a different context that §848(q)(8)
does not encompass state, as opposed to federal proceedings, see In re Lindsay, 875 F.2d 1502,
1506 (11th Cir. 1989). We disagree with the latter decisions; they ignore the plain language of
§848(q)(8). “If the statutory language is unambiguous, in the absence of ‘a clearly expressed
legislative intent to the contrary, that language must ordinarily be regarded as conclusive.’”
United States v. Turkette, 452 U.S. 576, 580 (1981) (quoting Consumer Product Safety
Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)), quoted in Reves yv. Ernst & Young,
570 U.S. 170, 177 (1993).

Our conclusion, however, does not end our inquiry in this case. This Court agrees with
the court in Hill that “Congress did not intend to encourage futile federal habeas petitions filed

only to obtain attorney compensation for state proceedings.” Hill, 992 F.2d at 803. Thus a


21 U.S.C. §848(q)(8) (emphasis added). Section 848(q)(10) provides that “[c]ompensation shall
be paid to attorneys appointed under this subsection” at amounts provided by law.
Id. §848(q)(10) (emphasis added).

The plain language of §848(q)(8) requires counsel appointed for a habeas corpus
petitioner who is under a state-imposed death sentence to represent the petitioner in connection
with a later-filed petition seeking clemency from the state’s authorities. There is no other way to
read the statute; it unambiguously refers to representation in “proceedings for executive or other
clemency,” and it contains no language limiting this to federal clemency proceedings. The
context of section 848(q)(8) likewise makes it abundantly clear that it applies to habeas corpus
petitioners pursuing state clemency relief following their federal habeas petition; the provision
was enacted as part of a statute that in plain terms requires the appointment of counsel to
represent petitioners in cases brought under 28 U.S.C. §2254, a statute that in equally plain terms
applies to (and only to) “person[s] in custody pursuant to the judgment of a State court.” Thus
when Congress required attorneys appointed for §2254 petitioners to pursue “proceedings for ...
clemency,” it necessarily contemplated that they would be seeking clemency from state
authorities; no federal official has the authority to commute a sentence imposed by a state court.
See U.S. Const., art. II, §2, cl. 1 (president has “Power to grant Reprieves and Pardons for
Offenses against the United States” (emphasis added); Schick v. Reed, 419 U.S. 256, 266 (1974)
(pardoning power “flows from the Constitution alone”). In sum, it is clear from the face of
§848(q)(8) that the statute requires an attorney appointed by a federal court for a habeas corpus
petitioner who is under a state-imposed death sentence to represent the petitioner in a subsequent

state clemency proceeding. Section 848(q)(10), in turn, provides that “[c]ompensation shall be


petitioner who, for example, files a habeas corpus petition containing plainly unexhausted claims
cannot expect to obtain appointed counsel under §848(q)(8) in order to exhaust his state
remedies, a step that the law ordinarily requires a habeas petitioner to take before filing in federal
court. See Lindsey, 875 F.2d at 1506-07 (if appointment and compensation were permitted to
exhaust state remedies, “inmates ... would ignore the exhaustion requirement and, before seeking
state remedies, futilely file for federal habeas relief. Only after procuring a federally appointed
lawyer would state inmates have an incentive to set upon the right track in pursuit of state
remedies.”). The Court therefore agrees with Hill that as a prerequisite to appointment of
counsel under §848(q)(8) to pursue state clemency, “the district court must be satisfied ... that the
request is made as part of a non-frivolous federal habeas corpus proceeding.” Hill, 992 F.2d at
803.' That prerequisite has not yet been met in this case. As noted earlier, Hickey has not filed a
habeas corpus petition; he has simply filed a notice of intent to file such a petition. The Court
thus has no way of knowing what claims Hickey’s eventual petition will include, whether those
claims have been exhausted, and whether they are otherwise colorable. Indeed, in view of the
procedural posture of this case, the concern expressed in Lindsey — that a federal habeas petition
could be filed for the primary purpose of obtaining attorney compensation for state-court (or state
clemency) proceedings — is a real one. Though we do not question counsel’s good faith when
they represent that Hickey is making his request for appointment “as part of a non-frivolous

federal habeas corpus petition,” the Court must make that assessment for itself, and we are in no

' We also agree with Hill that the request for appointment should be made prior to
performing the services related to the state clemency petition, Hill, 992 F.2d at 803, and that the
court must be satisfied that state law does not provide an avenue for obtaining compensation for
the attorney’s services. Jd.


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 02 C 2443 DATE 7/15/2002
CASE Hickey vs. Schomig
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MoTION: of the motion being presented.]
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oOo Brief in support of motion due
(3) 0 Answer brief to motion due . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] (set for/re-set for} on set for at
(6) Oo Pretrial conference(held/continued to] [set for/re-set for] on set for at .
(7) oO Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) (General Rule 21 O FRCP41(a)(1)  FRCP41(a)(2).
ao if [Other docket entry} _ For the reasons set forth on the attached order, the Court denies without
prejudice Hickey’s motion for appointment of counsel to represent him in state clemency proceedings (8-
1, 10-1), Hickey may renew his request upon the filing of his habeas corpus petition.
(1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required
4 umber of notices,

Document
Number

Notices mailed by judge’s staff. JU 16 2002

date dockoted

CY. is

date mailed notice

Notified counsel by telephone.

Y | Docketing to mail notices

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom:
OR deputy’s
initials

nailing deputy initials

OL GEES beet”

"3



position to do so at this time.

For this reason, the Court denies without prejudice Hickey’s motion for appointment of
counsel to represent him in state clemency proceedings [docket items 8-1, 10-1]. Hickey may

renew his request upon the filing of his habeas corpus petition.

AMAMEM CHK,

MATTHEW F. KENNBLLY/

United States District Judge
Date: July 15, 2002


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ARTHUR HICKEY, )
Petitioner, }
vs. ) Case No. 02 C 2443
JAMES SCHOMIG, Warden, }
Pontiac Correctional Center, } DOCKETED
Respondent. )

JUL 1g 20U¢

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:
On April 4, 2002, Arthur Hickey, who was convicted of murder in an Illinois court and
sentenced to death, see People v. Hickey, 178 Ill. 2d 256, 687 N.E.2d 910 (1997) (direct appeal);

People v. Hickey, I. 2d__, N.E.2d___, 2001 WL 1137273 (Ill. Sept. 27, 2001) (post-

conviction appeal), filed a notice of his intention to file a petition for habeas corpus in this Court
pursuant to 28 U.S.C. §2254. The notice, which stated that Hickey would file his petition on or
before December 3, 2002, presumably was filed as a predicate to Hickey’s motion (filed the same
date) seeking appointment of counsel to represent him in the anticipated habeas corpus
proceedings. The Court granted Hickey’s motion for appointment of counsel shortly after it was
filed. See 21 U.S.C. §848(q)(4)(B).

The next document the Court received in Hickey’s case was an ex parte motion pursuant
to 21 U.S.C. §848(q)(8) & (10), filed June 12, 2002, seeking to have his counsel appointed to

represent him in connection with an anticipated state clemency petition and also to compensate


counsel for that work. The Court directed Hickey’s counsel to serve the motion on the Illinois
Attorney General and directed the Attorney General to respond. The Attorney General has now
objected to the motion. For the reasons stated below, the Court denies Hickey’s motion.

Section 848 establishes enhanced penalties for persons who engage in a “continuing
criminal enterprise,” specifically the commission of a continuing series of violations of the
federal narcotics laws, undertaken as an organizer, supervisor, or manager of a group of five or
more persons, from which the defendant obtains substantial income or resources. The statute
authorizes imposition of a death sentence in certain circumstances for the commission of a
murder connected with a continuing criminal enterprise. Jd. 848(e). Subsection 848(q)(4)(A),
which was adopted in 1988, provides for the appointment of counsel and other necessary services
for persons charged with federal capital offenses. Id. §848(q)(4)(A).

Subsection (q)(4)(B), adopted in 1988 along with §848(q)(4)(A), provides that

[iJn any post conviction proceeding under section 2254 or 2255 of Title 28,

seeking to vacate or set aside a death sentence, any defendant who is or becomes

financially unable to obtain adequate representation of investigative, expert, or

other reasonably necessary services shall be entitled to the appointment of one or

more attorneys and the furnishing of such services in accordance with paragraphs

(5), (6), (7), (8), and (9).
21 U.S.C. §848(q)(4)(B). Subsection (8), referenced in §848(q)(4)(B), states than any attorney
appointed under §848(q)(4)(A) or (B)

shall represent the defendant throughout every subsequent stage of available
judicial proceedings, including pretrial proceedings, trial, sentencing, motions for
new trial, appeals, applications for writ of certiorari to the Supreme Court of the
United States, and all available post-conviction process, together with applications
for stays of execution and other appropriate motions and procedures, and shall
also represent the defendant in such competency proceedings and proceedings for
executive or other clemency as may be available to the defendant.