United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF JUDGE
has filed a pro se “Motion for Supersedeas or
Remittitur, Evidentiary Hearing and Appointment of
Counsel” and a separate pro se “Motion
for Appointment of Counsel.” ECF Nos. 268; 269.
these motions, Petitioner complains that one of his appointed
counsel, John R. Martin, has cancer and is no longer
providing effective representation. ECF No. 268 at 2-7.
Petitioner asks the Court to stay his March 15, 2018
execution, appoint new counsel for a “writ of habeas
corpus to be filed, ” and hold an evidentiary at which
he could present his ineffective assistance of federal habeas
counsel claims. ECF No. 268 at 7.
argues that the Petitioner's motion for stay and
appointment of counsel are for the sole purpose of raising an
ineffective assistance of counsel claim which can only be
filed in a 28 U.S.C. § 2254 action. ECF No. 271 at 2.
Thus, Respondent maintains that this Court does not have
subject matter jurisdiction over the case because the
Eleventh Circuit has not given Petitioner permission to file
a second or successive habeas petition. ECF No. 271 at 2-3.
filed his original 28 U.S.C. § 2254 petition in this
Court on November 10, 1997. ECF No. 8. The Court appointed
both John R. Martin and Michael K. MyIntyre to represent
Petitioner. ECF Nos. 5; 12. This Court denied habeas relief
on September 28, 2004 and on May 30, 2007, following a
limited remand. ECF Nos. 127; 184. The Eleventh Circuit
affirmed the denial of relief, Gary v. Hall, 558
F.3d 1229 (11th Cir. 2009), and the United States Supreme
Court denied certiorari, Gary v. Hall, 558 U.S. 1052
March 14, 2018, Petitioner's appointed counsel filed in
the Eleventh Circuit an application seeking permission to
file a second or successive habeas petition and a motion for
stay of execution. ECF No. 271 at 2. This application, in
which Petitioner raises claims of actual innocence, is still
pending. ECF No. 271 at 2.
extent that the Court interprets Petitioner's motions as
a second or successive habeas, it clearly does not have
jurisdiction. Additionally, to the extent that Petitioner
requests a stay and appointment of counsel so that he can
litigate the second or successive habeas that he has already
asked the Eleventh Circuit for permission to file, his
motions are premature. Before a second or successive habeas
action may be filed in the district court, the applicant must
receive authorization from the appropriate court of appeals.
28 U.S.C. § 2244(b)(3)(A). The requirement that a habeas
petitioner obtain authorization from the circuit court before
filing his second or successive petition in the district
court is jurisdictional. Burton v. Stewart, 549 U.S.
147, 157 (2007). Only if the Eleventh Circuit grants
Petitioner's pending application for permission to file a
second habeas will this Court have subject matter
jurisdiction over that petition.
extent that Petitioner seeks a stay and substitution of
counsel to help him file yet another application with the
Eleventh Circuit in which he alleges ineffective assistance
of federal habeas counsel, his motions must be denied as
futile. An indigent inmate who challenges his death sentence
in federal court is entitled to the appointment of counsel
“[i]n any post conviction proceeding under section
2254.” 18 U.S.C. § 3599(a)(2). Once appointed,
counsel must represent petitioner “throughout every
subsequent stage of available judicial proceedings, ”
including state clemency proceedings. 18 U.S.C. § 3599
(e). The Court appointed counsel under § 3599, and they
have represented Petitioner through all of his federal habeas
proceedings and through two state clemency proceedings.
of that federally appointed counsel is warranted only when it
would serve the ‘interests of justice.'”
Lambrix v. Sec'y, Fla. Dep't of Corr., 756
F.3d 1246, 1259 (11th Cir. 2014) (quoting Martel v.
Clair, 565 U.S. 648, 658 (2012)). The Court is not
required to appoint new counsel so that a petitioner might
file a claim that provides no basis for federal habeas
states he wants to raise a claim that one of his appointed
federal habeas attorneys has provided ineffective assistance.
A free-standing claim of ineffective assistance of federal
habeas counsel does not provide a basis for federal habeas
relief. 28 U.S.C. 2254(i); Coleman v. Thompson, 501
U.S. 722, 752 (1991) (finding that if there is no
constitutional right to counsel, there can be no deprivation
of effective assistance); Chavez v. Sec'y Fla.
Dep't of Corr., 742 F.3d 940, 944 (11th Cir. 2014)
(citing Coleman, 501 U.S. at 752, and 28 U.S.C.
§ 2261(e)) (“The Supreme Court has long held that
there is no constitutional right to counsel in
post-conviction proceedings, even in capital cases, which
necessarily means that a habeas petitioner cannot assert a
viable, freestanding claim for the denial of effective
assistance in such proceedings.”). Therefore, it would
not be in the “interests of justice” to
substitute counsel to pursue such a claim. Martel,
565 U.S. at 658. Also, there is no reason to grant
Petitioner's request for a stay or an evidentiary hearing
to allow him to pursue a futile claim. See Bundy v.
Wainwright, 808 F.2d 1410, 1421 (11th Cir. 1987)
(stating that one factor a district court must consider when
reviewing a request to stay execution under 28 U.S.C. §
2251 is whether the movant “has made a showing of
likelihood of success on the merits”).
Petitioner's motions are denied and Respondent's
motion to dismiss is granted.