Samayoa v. Davis, No. 18-56047 (7-3-19)(Fletcher w/Hurwitz; dissent by Watford). Note:  FPD AZ-CHU is involved.  The petitioner is on California’s death row.  His appeals are done, and he is at the end of the line, save for clemency.  He seeks appointment of the Az FPD as co-counsel to assist the state appointed counsel in clemency proceedings.  The district court had denied the appointment.

On appeal, the 9^th reversed. The Supreme Court in Harbison v. Bell, 566 US 180 (2009) held that 18 U.S.C. § 3599 provides for federal appointment of counsel for death-row petitioners seeking federal relief. The subsection (e) extends the appointment to further proceedings, such as clemency. The 9^th concludes, here, that a court can appoint additional counsel. In this case, the original appointed counsel has been representing the petitioner pro bono, has never done a clemency proceeding, and there are additional tasks and claims to be investigated and raised. He argued he needed the assistance of counsel.  In denying the request, the district court had reasoned that the petitioner had to return to the California Supreme Court for such appointment of additional counsel because he was already represented.  The 9^th concluded that the statute allows for a federal court to appoint counsel. 

Dissenting, Watford argues that 3599 cannot be squared with Harbison.  Section 3599 requires only a showing of indigency; however, Harbison stated that a state appointed counsel may render the petitioner ineligible for appointment of counsel, because he has one and therefore arguably no longer indigent. 

The majority finds this reading too narrow. The majority’s reading of the statute permits appointment of one or more attorneys if the petitioner is “financially unable” to obtain adequate representation. Petitioner does not have to start a new inquiry into adequacy of representation, or go back to state court. Second counsel can be appointed even if the petitioner has representation through other sources.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/03/18-56047.pdf