United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF JUDGE UNITED STATES DISTRICT COURT
before the Court is a motion for nunc pro tunc
appointment of counsel. Mot. for nunc pro tunc appointment of
counsel, ECF No. 55. Anna Arceneaux seeks appointment as
co-counsel in this capital habeas corpus action that is
currently pending in the Eleventh Circuit. Id. at 1.
Order dated May 7, 2014, the Court, pursuant to 18 U.S.C.
§ 3599, appointed Brian Kammer and Kirsten Salchow, both
of whom were employed at the Georgia Appellate Practice and
Educational Resource Center (“Georgia Resource
Center”) to represent Tollette. Order, ECF No. 6.
Salchow departed from the Georgia Resource Center in January
2017 and Kammer departed in December 2018. Mot. for
Substitution Counsel at 2, ECF No. 52.
Carroll became the Interim Executive Director of the Georgia
Resource Center. Id. at 3. While Tollette's case
was pending in the Eleventh Circuit, Carroll filed an entry
of appearance in his case, and this Court substituted her as
lead counsel to represent Tollette. Id. at 2; Order,
ECF No. 53; Tollette v. Warden, 16-17149 (11th
August 2019, Arceneaux became the new Executive Director of
the Georgia Resource Center. Mot. for nunc pro tunc
appointment of counsel at 2, 4, ECF No. 55. Arceneaux filed a
notice of appearance in Tollette's case on October 4,
2019 and presented oral arguments on Tollette's behalf on
November 20, 2019. Id. at 2-3.
U.S.C. § 3599(a)(2) provides that
[i]n any post conviction proceeding under section 2254 or
2255 of title 28, United States Code, seeking to vacate or
set aside a death sentence, any defendant who is or becomes
financially unable to obtain adequate representation . . .
shall be entitled to the appointment of one or more attorneys
. . . .
18 U.S.C. § 3599(c) provides that “at least one
attorney so appointed must have been admitted to practice in
the court of appeals for not less than five years, and must
have had not less than three years' experience in the
handling of appeals in that court in felony cases.” The
Court may, however, “for good cause . . . appoint
another attorney whose background, knowledge, or experience
would otherwise enable him or her to properly represent the
defendant, with due consideration to the seriousness of the
possible penalty and to the unique and complex nature of the
litigation.” 18 U.S.C. § 3599(d); In re
Lindsey, 875 F.2d 1502, 1507 n.3 (11th Cir. 1989)
(“The use of the words ‘another attorney'
suggest that the court may appoint an attorney in lieu of one
meeting the statutory requirements, rather than an attorney
in addition to one meeting the requirements.”).
has not been admitted to practice in the Eleventh Circuit for
at least five years, and she has not had three years'
experience handling felony cases in that court. But she has
extensive experience in capital litigation, and she is now
the Executive Director of the Georgia Resource Center, which
began representing Tollette in 2007.
for nunc pro tunc appointment of counsel at 4, ECF No. 55.
Arceneaux has practiced law since 2006 and was admitted to
practice before the United States Supreme Court in 2015, the
Fourth Circuit in 2014, the Fifth Circuit in 2015, and the
Eleventh Circuit in 2019. Id. at 5. She has
practiced exclusively in the area of capital habeas corpus
litigation since joining the Georgia Resource Center in
August 2019. Id. Prior to joining the Georgia
Resource Center, Arceneaux was a Staff Attorney for more than
ten years with the Capital Punishment Project of the national
office of the ACLU. Id. She has appeared as lead
counsel and associate counsel in capital proceedings in
trial, appeal, and post-conviction in numerous cases across
the county. Id. at 5-6. Arceneaux is a frequent
presenter at national and regional trainings for capital and
criminal defense attorneys. Id. at 6. She is a
faculty member at the National Habeas Institute, which is a
seminar for capital post-conviction attorneys sponsored by
the National Institute for Trial Advocacy and the United
States Administrative Office of the Courts. Id.
Arceneaux is thoroughly familiar with the record in
Tollette's case. Id. at 3, 7. Tollette also
requests that she be appointed to represent him in this
action. Id. at 7.
is entitled to the appointment of “one or more”
qualified counsel. 18 U.S.C. § 3599(a)(2). The Court
finds “good cause” to appoint Arceneaux as
co-counsel for Tollette. 18 U.S.C. § 3599(d) Her
“background, knowledge, [and] experience” with
capital litigation and her familiarity with Tollette's
case will enable her to properly represent him in this
Tollette's motion for nunc pro tunc appointment of Anna
Arceneaux as co-counsel effective October 4, 2019 is
GRANTED. Mot. for nunc pro tunc appointment
of counsel, ECF No. 55.
will be compensated at the rate approved by the
Administrative Office of the United States Courts.
Instructions regarding procedures for obtaining
investigative, expert, or other services necessary for
representation of Tollette; limitations on fees for such
services; submission of vouchers; and reimbursement of
out-of-pocket expenses are detailed in the Court's May 7,
2014 Order. Order, ECF No. 6