Opinion
CV 04-6197-AA.
February 8, 2005
Steven T. Wax, Federal Public Defender C. Renee Manes, Assistant Federal Public Defender, Portland, Oregon, Dennis Balske, Portland, Oregon, Attorneys for Petitioner.
Hardy Myers, Attorney General, Youlee Yim You, Assistant Attorney General, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
Petitioner Robert Paul Langley, Jr., an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus petition (#7) pursuant to 28 U.S.C. § 2241 and moves the court for summary judgment (#5).
BACKGROUND
Petitioner was charged in State v. Langley, Marion County Case No. 88-C-21624, with the aggravated murder of Anne Gray. In October of 1989, Petitioner was tried, convicted, and sentenced to death. On automatic and direct review, Petitioner's judgment of conviction was affirmed, the sentence of death was vacated, and the case was remanded to the circuit court for further proceedings. State v. Langley, 314 Or. 247 (1992), revised 318 Or. 28 (1993). After a second penalty trial, Petitioner was sentenced to death a second time. On December 29, 2000, the second sentence of death was vacated on direct appeal, and the case was remanded to the circuit court for further proceedings. State v. Langley, 331 Or. 430 (2000). The prosecutor elected to seek the imposition of the death penalty in a third penalty trial. The third penalty trial was set for May 9, 2002.
On February 2, 2001, attorney Karen Steele was appointed as lead counsel for Petitioner. Marc Friedman was appointed co-counsel. Steele had initially been appointed in April of 1994 to represent Petitioner as co-counsel in the second penalty trial. Steele questioned a number of witnesses and delivered the summation to the jury in the second penalty trial.
Petitioner was charged in a separate capital case, State v. Langley, Marion County Case No. 88-C-21623, with the aggravated murder of Larry Rockenbrant. In June of 1989, Petitioner was found guilty of Rockenbrant's murder and sentenced to death. On October 29, 1992, Petitioner's judgment of conviction was overturned on direct appeal. State v. Langley, 314 Or. 511 (1992). Karen Steele represented Petitioner in the trial court proceedings on remand. Petitioner was convicted and sentenced to life without parole for a minimum of 30 years. State post-conviction proceedings in the Rockenbrant case are currently pending. Counsel for Petitioner in this proceedings has been informed that allegations of ineffective assistance of counsel may be made against Steele in the pending state post-conviction proceedings.
In October of 2002, Friedman sought leave of the court to withdraw as counsel. On November 25, 2002, Steele moved the court on behalf of Petitioner to appoint new co-counsel and to continue the trial for a year. On November 26, 2002, the state trial judge held a hearing on the motion to continue the trial. The prosecutor expressed concerned over impact of further delay on the State's case because a witness who had testified in the earlier penalty trials had died. The prosecutor complained that deadlines set by the court were not kept by the defense counsel and asserted that the State was entitled to a timely trial. The state trial judge expressed his concerns in open court that the defense was "not even close to being ready for trial" but concluded that Steele needed co-counsel and reset the trial to October 6, 2003 "subject only to virtual emergencies." Respondent's Exhibit 101, pp. 16, 24.
On December 19, 2002, Rose Jade was appointed co-counsel.
On August 28, 2003, Steele, on behalf of Petitioner, filed a third motion for continuance of the trial date. Steele stated in her affidavit in support of the motion for continuance that she would not be "adequately prepared to make crucial strategic case decisions for 12 months." Petitioner's Exhibit 5, p. 100. Steele outlined mitigation investigation that remained to be completed, as well as ten issues where further litigation and/or an evidentiary hearing would be necessary. Id. at 101-06. Steele stated in her affidavit: "[I]t is my professional opinion that . . . I will be providing ineffective and inadequate assistance of counsel if the defense motion for continuance . . . is not granted and this case proceeds to trial. . . . I am subject to a claim of violating DR6-101(A) in that I am not providing competent representation. . . ." Id. at 107.
Co-counsel Jade stated in her affidavit in support of the motion for continuance dated August 24, 2003 that she had worked full time on this case since mid-January, 2002; that she had not read the trial transcripts from the previous trial or the discovery materials; and that she could not provide effective assistance at the upcoming trial. Jade further stated: "[I]t is my professional opinion today that Mr. Langley has never been provided meaningful assistance of mitigation counsel." Petitioner's Exhibit 10, p. 193. Jade estimated that "we need at least a year to investigate and document Mr. Langley's social history." Id.
On August 29, 2003, the prosecutor filed the "State's Response to Defense Motion for Continuance of 10/06/2003 Trial Date." Petitioner's Exhibit 12. The prosecutor concluded that the court was left with no option other than to grant the continuance of the trial given the affidavits of Steele and Jade stating that they are not capable of providing constitutionally adequate representation to Petitioner on the scheduled trial date. The prosecutor informed the court that "there would be no way to defend this case against a post conviction relief challenge," and "strongly encourage[d] the Court to remove the current `defense team' from this case and appoint new counsel." Petitioner's Exhibit 12, pp. 205, 206. The prosecutor asserted that "the strength of the State's case suffers with every delay." Id. at 209.
On September 2, 2003, Circuit Court Judge Joseph Guimond issued a letter order stating that he had reviewed the motion for continuance and the State's response, including "their request that, if a continuance is granted, that current counsel for the defendant be removed and new counsel appointed for the defendant." Petitioner's Exhibit 13, p. 215. The judge concluded that he had no choice but to grant the motion for continuance and that Steele and Jade could not remain as effective counsel for the defendant. Judge Guimond explained, in part:
This case is one of continuing frustration for this court. The Oregon Supreme Court's decision in this case was published in December of 2000 and Ms. Steele acknowledges that she was appointed in February, 2001, some 30 months ago. This is at least the third trial setting and Ms. Steele is now requesting an additional 12 months before she and co-counsel could be ready for trial. There is absolutely no reason for this court to believe that Ms. Steele or the defendant will be ready and willing to proceed with the trial of this matter if I continue it 12 months, 24 months or five years. There will always be some new matter or new problem that will require a further re-set of the trial. The fact that Ms. Steele has just recently obtained the services of a "mitigation specialist" is beyond my comprehension, regardless of the attempted explanations contained in her affidavit.Id.
On September 2, 2003, Petitioner presented his affidavit affirming that he had a good working relationship with Steele and Jade; that he was committed to cooperating with Steele and Jade; and that he wished Steele and Jade to remain as his counsel. Petitioner's Exhibit 18.
On September 4, 2003, Judge Guimond wrote to Steele and Jade stating that his decision to remove them as counsel was final, and that he was not aware of any right of the defendant to demand an evidentiary hearing on this discretionary ruling. Petitioner's Exhibit 21, p. 268. Judge Guimond signed an order prepared by the State finding that "the interests of justice require removal of Karen A. Steele and Rose Jade as counsel in this case," and that "continued representation . . . would result in a disruption of the orderly processes of justice unreasonable under the circumstances of this case." Petitioner's Exhibit 22, pp. 270, 271.
On September 5, 2003, Petitioner filed a "Petition for the Issuance of an Alternative Writ of Mandamus" asking the Supreme Court of the State of Oregon to issue a writ ordering the state trial judge to immediately vacate or reverse his order removing defense counsel and, if necessary, grant an evidentiary hearing regarding the continued appointment of Steele and Jade. Petitioner's Exhibit 31. Petitioner asserted that 1) there must be clear and convincing evidence to support an order to remove court-appointed capital counsel on the court's own motion and over the objection of defendant; 2) an indigent capital defendant has a right to an evidentiary hearing before a trial court on its own motion orders removal of his court-appointed counsel; and 3) there is insufficient evidence in the record to support the order removing counsel. In support of his position, Petitioner relied upon "ORS 135.050(5), the 6th and 14th Amendments to the U.S. Constitution, and/or Article I sections 10, 11 and 20 of the Oregon Constitution." Petitioner's Exhibit 32, p. 334.
The State opposed the petition for alternative writ of mandamus on the grounds that 1) mandamus is not an appropriate or necessary remedy where the decision of the trial court is an exercise of discretion; and 2) the trial court did not abuse its discretion by removing and replacing defense counsel.
On October 2, 2003, the Oregon Supreme Court denied Petitioner's request for a writ of mandamus without a hearing or opinion. Petitioner's Exhibit 38.
On October 15, 2003, Petitioner filed a request for reconsideration of the denial of the writ of mandamus. Petitioner's Exhibit 39. The Oregon Supreme Court granted leave to file supplemental authorities and denied the request for reconsideration on November 6, 2003. Petitioner's Exhibit 42.
On April 7, 2004, Petitioner filed a second petition for a writ of mandamus asking the Oregon Supreme Court to order that his case be reassigned to another trial judge and that Steele and Jade be reinstated as his counsel. Petitioner's Exhibit 43. Petitioner asserted that Judge Guimond had engaged in ex parte extrajudicial consultation when he consulted with the Presiding Judge of the District prior to removing Steele and Jade as defense counsel. Id. at 469. The Oregon Supreme Court denied the second petition on April 9, 2004. Petitioner's Exhibit 45.
Petitioner is currently represented in the state court penalty trial proceedings by Ralph Smith and co-counsel. The trial is currently scheduled for October 17, 2005. Petitioner makes no claim of ineffective assistance of counsel against Smith or his current co-counsel.
On July 9, 2004, Petitioner filed a "Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241" requesting that this federal court order the Marion County Circuit Court to reinstate prior defense counsel and order the Marion County District Attorney to cease any attempt to interfere with the appointment of defense counsel. Petitioner alleges the following two claims for relief: 1) that the prosecutor's interference with defense counsel violates the Sixth, Eighth and Fourteenth Amendments and endangers the reliability of the capital trial proceeding; and 2) that the summary removal of counsel violates the due process and equal protection guarantees of the Fourteenth Amendment.
Petitioner's reply in support of his motion for summary judgment states, in part, that "counsel for Mr. Langley have been informed that allegations of ineffective assistance of counsel may be made against Karen Steele in the post-conviction proceedings of Langley v. Belleque, Marion County Circuit Court Case No. 03-C-10024. . . . Counsel has recently been informed that Ms. Steele has taken her bar membership inactive. Either of these situations may affect Ms. Steele's ability to represent Mr. Langley in the future, but do not impact former co-counsel, Rose Jade." Reply, p. 3, n. 3.
APPLICABLE STANDARD
Viewing the evidence in the light most favorable to the non-moving party, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Petitioner asserts that the relevant facts are not in dispute, and that he is entitled to summary judgment on the claims in his habeas corpus petition. Respondent contends that there are no facts in dispute, and that the claims in the petition must be dismissed on the grounds that the exercise of federal jurisdiction is barred at this stage in the state court proceedings.
APPLICABLE LAW
In order to invoke habeas corpus review by a federal court, the Petitioner must satisfy the jurisdictional requirements that 1) the petition be filed by a person "in custody," and 2) the petition challenge the legality of that custody on the grounds that it is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004). In contrast to the grant of habeas corpus authority under section 2254 for persons in custody pursuant to the judgment of a state court, section 2241 implements a general grant of habeas corpus authority for a person in custody "for some other reason, such as pre-conviction custody, custody awaiting extradition, or some other forms of custody that are possible without a conviction." White, 370 F.3d at 1006; see, e.g., Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) (petitioner serving a sentence in Alabama state prison can proceed under section 2241 to attack the validity of a Kentucky indictment underlying a detainer lodged against him by Kentucky officials on the grounds that he had made repeated demands for speedy trial on the Kentucky indictment); McNeely v. Blanas, 336 F.3d 822 (9th Cir. 2003) (pretrial detainee held in custody for more than three years without a preliminary hearing or a trial can proceed under section 2241 with a claim that his constitutional right to a speedy trial has been denied); and Santamaria v. Horsley, 133 F.3d 1242 (9th Cir. 1998) (petitioner in custody after the reversal and remand of his murder conviction can assert a claim under section 2241 on the grounds that retrial will violate his constitutional rights under the Double Jeopardy Clause).In White, the United States Court of Appeals for the Ninth Circuit explained that proceedings under 28 U.S.C. § 2241 "would not be subject to: (1) the one-year statute of limitations provision of [the Anti-Terrorism and Effective Death Penalty Act (AEDPA)], 28 U.S.C. § 2244(d)(1); (2) the extremely deferential review of state court decisions under 28 U.S.C. § 2254(d)(1) and (2); (3) AEDPA's limitations on successive petitions, 28 U.S.C. § 2244(b)(2); and (4) state court exhaustion requirements." 370 F.3d at 1008. However, a petitioner seeking pre-conviction habeas under 28 U.S.C. § 2241 must await the outcome of state proceedings before commencing his federal habeas corpus action unless "special circumstances" warrant federal intervention. Braden, 410 U.S. at 489. The Ninth Circuit Court of Appeals explained this general rule as "a logical implication of the abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) which precludes federal injunctions of pending state criminal prosecutions absent `extraordinary circumstances.'" Carden v. Montana, 626 F.2d 82, 83 (9th Cir. 1980). "Only if `extraordinary circumstances' render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process." Kugler v. Helfant, 421 U.S. 117, 124 (1975). "[C]ircumstances must be `extraordinary' in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation." Id. at 125.
Younger "and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances." Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982). "Th[is] policy rests on notions of comity and respect for state functions and was born of the concern that federal court injunctions might unduly hamper state criminal prosecutions." Champion Int'l Corp. v. Brown, 731 F.2d 1406, 1408 (9th Cir. 1984) (citing Younger, 401 U.S. at 44). "Minimal respect for the state processes . . . precludes any presumption that the state courts will not safeguard federal constitutional rights." Middlesex County Ethics Comm., 457 U.S. at 431. The United States Supreme Court has expressly stated that "[w]here a case is properly within [the Younger] category of cases, there is no discretion to grant injunctive relief." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 816 n. 22 (1976).
Applying the principles of Younger, abstention is required when 1) there are pending state judicial proceedings; 2) the state proceedings implicate important state interests; and 3) the state proceedings provide an adequate opportunity to raise federal questions. See Middlesex County Ethics Comm., 457 U.S. at 432. Where there is an "opportunity" to present the claims in ongoing state proceedings, "[n]o more is required to invoke Younger abstention." Juidice v. Vail, 430 U.S. 327, 337 (1977). The pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims. Moore v. Sims, 442 U.S. 415, 430 (1979).
In Drury v. Cox, 457 F.2d 764 (9th Cir. 1972), a state prisoner brought a federal habeas corpus action asserting that the evidence at the preliminary hearing in his state court proceedings was not sufficient to establish probable cause to bind him over for trial on an open charge of murder. The federal district court, after an independent review of the record, denied the petition for habeas corpus. Petitioner appealed to the Ninth Circuit Court of Appeals claiming that his detention for trial amounted to a denial of due process because of the lack of probable cause. The Court of Appeals stated:
Our reading of Younger v. Harris convinces us that only in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts. Apparent finality of one issue is not enough.Id. at 764-65 (citation omitted); see also Edelbacher v. Calderon, 160 F.3d 582 (9th Cir. 1998) (petitioner with a pending state penalty trial and no unusual circumstances must await outcome of state proceedings before commencing a federal habeas corpus action), and Carden, 626 F.2d 82 (petitioners alleging violation of their constitutional right to a speedy trial had not shown special circumstances warranting federal intervention prior to the completion of the state court criminal trial).
CONTENTIONS OF THE PARTIES
Petitioner contends that the state court has violated his constitutional right to maintain an existing attorney-client relationship in the pretrial proceedings. Petitioner contends that the actions of the Marion County District Attorney and the Marion County Circuit Court violate his Sixth Amendment right to continuity of counsel, his right to a reliable capital penalty trial, and his right to due process protections of notice and opportunity to be heard before denying his request for counsel of his choice.
Petitioner contends that this court should resolve his claims at this stage in the proceedings because the requested relief does not implicate the abstention doctrine in Younger. Petitioner agrees that there is a pending state criminal prosecution, and that the State of Oregon has an important interest in proceeding with the criminal trial. However, Petitioner contends that abstention is not required because he has presented his federal claims to the Oregon Supreme Court in a mandamus proceedings, and post-trial review will not provide an adequate opportunity to redress his loss of counsel. Petitioner contends that the disqualification of his counsel cannot be remedied with an ordinary appeal after trial, and that his claims should be reviewed at this time in order to avoid the irreparable injury caused by going to trial. Petitioner contends that defense counsel in a capital case is not a fungible entity, and disqualification of his counsel will have a continuing impact on his ability to receive a fundamentally fair trial.
Respondent contends that the federal court must refrain from interfering with the state criminal prosecution under the Younger abstention doctrine. Respondent asserts that the penalty trial is pending in state court; that the sentencing of a criminal defendant clearly implicates important state interests; and that appellate and post-conviction procedures of the State of Oregon provide Petitioner with an adequate opportunity to raise any federal claims after sentencing. Respondent contends that federal court intervention at this point allows Petitioner to bypass state appellate review and violates the important principles of comity. Respondent contends that federal intervention before the state court has a full opportunity to consider Petitioner's claims avoids the deference that must be accorded to state court decisions under AEDPA.
ANALYSIS
Petitioner's judgment of conviction has been affirmed and his sentence of death vacated and remanded for further proceedings. State v. Langley, 314 Or. 247, 272 (1992), revised 318 Or. 28, 32 (1993). Petitioner's requested relief implicates important state interests in the timely prosecution of a capital proceedings and in the appointment of counsel under state law. Petitioner is currently represented in the state court proceedings by competent counsel, and the penalty phase retrial is scheduled for October 17, 2005. This court must determine whether there are "extraordinary circumstances" which would warrant federal court intervention into this ongoing state criminal proceedings.
Mandamus Proceedings in the Oregon Supreme Court 28 U.S.C. § 2241 allows a criminal defendant to bring a federal habeas corpus action prior to final judgment and appeal in state court under certain circumstances. In Braden, the petitioner applied to the United States District Court for the Western District of Kentucky for a writ of habeas corpus, alleging denial of his constitutional right to a speedy trial on a three year old Kentucky indictment. The petitioner was in custody in the State of Alabama pursuant to an unrelated conviction and attacked only the validity of the Kentucky indictment underlying a detainer lodged against him by officials of the State of Kentucky. The United States Supreme Court concluded that the petitioner "is currently `in custody' within the meaning of the . . . statute," and that he "has exhausted all available state remedies as a prelude to this action." 410 U.S. at 488, 489. The Court explained:
Petitioner does not . . . seek at this time to litigate a federal defense to a criminal charge, but only to demand enforcement of the Commonwealth's affirmative constitutional obligation to bring him promptly to trial. He has made repeated demands for trial to the courts of Kentucky, offering those courts an opportunity to consider on the merits his constitutional claim of the present denial of a speedy trial. Under these circumstances it is clear that he has exhausted all available state court remedies for consideration of that constitutional claim, even though Kentucky has not yet brought him to trial.Id. at 489-90 (citations omitted). The Court examined the fundamental interests underlying the judicially-crafted exhaustion doctrine and concluded that "[a] federal habeas corpus action at this time and under these circumstances does not jeopardize any legitimate interest of federalism." Id. at 491-92.
The state trial judge in this case acted pursuant to ORS 135.050(5) in discharging counsel and appointing new counsel. Petitioner does not demand enforcement of any constitutional obligation to bring him promptly to trial or raise any other challenge to the validity of his custody. Petitioner claims that the decision of the state trial judge to disqualify his appointed counsel and appoint other competent counsel pursuant to state law violates constitutional rights reserved to him regarding his right to counsel and right to due process. Petitioner asks this federal court to intervene and provide him with injunctive relief ordering the state court to reinstate his prior counsel in order to protect his constitutional rights.
The parties agree that the relevant language of ORS 135.050 provided: "(5) Unless otherwise ordered by the court, the appointment of counsel under this section shall continue during all criminal proceedings resulting from the defendant's arrest through acquittal or the imposition of punishment. The court having jurisdiction of the case may substitute one appointed counsel for another at any stage of the proceedings when the interests of justice require such substitution."
The state trial judge based his decision to replace defense counsel on the lack of progress in the pending state criminal prosecution. The state trial judge balanced the State's right to proceed without prejudicial delay and the interest of Petitioner in continuing with counsel of his choice. The state trial judge found that "the interests of justice require removal of Karen A. Steele and Rose Jade as counsel in this case," and that "the continued representation of this defendant by Karen A. Steele and Rose Jade would result in a disruption of the orderly processes of justice unreasonable under the circumstances of this case." Petitioner's Exhibit 22, pp. 270, 271. The decision of the state trial judge was not made in an arbitrary manner, and the state trial judge expressly stated his reasons for replacing counsel. The state trial judge relied only upon facts related to the management of the pending state criminal prosecution properly reserved to the state trial judge. The state trial judge appointed competent counsel in a timely manner.
In his first mandamus action filed in the Oregon Supreme Court, Petitioner asserted that the trial court "abused its discretion in removing [his] court-appointed counsel without providing [him] meaningful explicit notice of the Court's dissatisfaction with [his] counsel, and refusing to provide [him] with any meaningful opportunity to be heard." Petitioner's Exhibit 32, p. 340. Respondent asserted that the Oregon Supreme Court should deny the petition for an alternative writ of mandamus on the grounds that mandamus is not an appropriate remedy where the trial judge's decision is an exercise of discretion, and that the trial court did not abuse its discretion. Petitioner, in reply, recognized the discretion implied in the statutory language "in the interests of justice," ORS 135.050(5), but asserted that "the trial court's decision was not within the range of legally correct discretionary choices, and did not produce a permissible, legally correct outcome." Petitioner's Exhibit 35, pp. 385-86. The Oregon Supreme Court issued an order denying the Petition for Alternative Writ of Mandamus without opinion. Petitioner's Exhibit 38, p. 404. A subsequent motion for reconsideration was denied, Petitioner's Exhibit 42; and a second mandamus action filed in the Oregon Supreme Court was denied without opinion. Petitioner's Exhibit 45.
The principles of comity which protect the role of the state court in the enforcement of federal law are generally not satisfied where a claim is presented to the state court for the first and only time in a procedural context in which review is discretionary and further state court review is available. See Castille v. Peoples, 489 U.S. 346, 351 (1989). In this case, state mandamus proceedings filed by Petitioner were not adequate to present the merits of his federal claims to the state court. Under state law, mandamus relief does not lie to control judicial discretion. ORS 34.110; State ex rel. Anderson v. Miller, 320 Or. 316, 324 (1994). In addition, mandamus relief is unavailable "where the relator has a speedy and adequate remedy at law by way of a direct appeal." State ex rel. LeVasseur v. Merten, 297 Or. 577, 580 (1984). The Oregon Supreme Court did not state a grounds for its order denying the mandamus relief, and this court cannot conclude that the state court was expressing any view on the merits of Petitioner's federal claims.
Petitioner is entitled to raise the federal claims in this petition on direct appeal and postconviction relief after sentencing. This court concludes that the state court has not had an adequate opportunity to address Petitioner's federal claims because the mandamus proceedings did not present the federal issues to the state court for final resolution, and further state court review is available. Therefore, the Younger concerns for comity were not satisfied by Petitioner's mandamus proceedings in the Oregon Supreme Court.
Relief After Trial not Adequate
Petitioner asserts that his claim of federal constitutional injury presents extraordinary circumstances which warrant federal court intervention prior to completion of his state court criminal prosecution because the Ninth Circuit Court of Appeals has "conclusively held that the inappropriate removal of counselcannot be remedied after a trial." Petitioner's Reply, p. 18. Petitioner relies upon Christensen v. United States Dist. Court, 844 F.2d 694 (9th Cir. 1988), and Cole v. United States Dist. Court, 366 F.3d 813 (9th Cir. 2004). Respondent asserts that Christensen and Cole are wholly distinguishable from Petitioner's case because these cases involve the right to retained counsel in civil cases filed in the federal court.
In Christensen, the Federal Savings and Loan Insurance Corporation (FSLIC) commenced a civil action in the federal district court after the Beverly Hills Savings and Loan Association (BHSL) was put into receivership. The Wyman law firm appeared as counsel of record in the federal district court proceedings for the Amir group and Terry Christensen, a senior partner in the Wyman law firm. The FSLIC moved the federal district court to disqualify the Wyman law firm on the grounds that the law firm had previously represented BHSL and was barred from representing another client in a position adverse to BHSL in a substantially related litigation. The federal district court found that a substantial relationship existed between the Wyman law firm's former representation of BHSL and its current representation of the Amir group and Christensen and disqualified the Wyman law firm from representing either the Amir group or Christensen. Christensen filed a petition for a writ of mandamus in the federal circuit court.
The federal circuit court determined that mandamus relief was appropriate in Christensen with reference to the guidelines set forth in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). The federal circuit court noted the second factor in Bauman as "the petitioner will be damaged in a way not correctable on appeal" and explained that "[t]heoretically, Christensen could appeal the disqualification of his counsel after trial. He could not, however, obtain the desired relief on direct appeal because he seeks to be represented by his chosen counsel at trial. Once a new attorney is brought in, the effect of the order is irreversible." Christensen, 844 F.2d at 697. The federal circuit court found a unique relationship between BHSL, Christensen, and the Wyman law firm because Christensen served as a BHSL director and a senior partner in the Wyman law firm and concluded that the federal district court erred in deciding to disqualify the Wyman law firm from representing Christensen.
In Cole, the magistrate judge in a civil action filed in the federal district court disqualified the petitioner's counsel prompting the petitioner to file a mandamus petition in the federal circuit court. The federal circuit court recognized that "a writ of mandamus may be used to review the disqualification of counsel. See Christensen v. United States Dist. Court." Cole, 366 F.3d at 816. The federal circuit court reviewed the Bauman factors and denied the petition for a writ of mandamus because "mandamus is an extraordinary remedy and petitioners did not take advantage of an available remedy by seeking review of the magistrate judge's decision before the district court." Id. at 815.
Petitioner's case involves facts and law materially different from the Christensen case and the Cole case. Both Christensen and Cole involved a civil action filed in the federal district court and a writ of mandamus filed in the federal circuit court. The "strong federal policy against federalcourt interference with pending state judicial proceedings absent extraordinary circumstances" espoused by Younger and its progeny was not involved in any manner. Middlesex County Ethics Comm., 457 U.S. at 431. "[T]he fundamental policy against federal interference with state criminal prosecutions" was not involved in any manner. Younger, 401 U.S. at 46. Neither Christensen nor Cole provide guidance to a court deciding whether there are "extraordinary circumstances" which warrant federal court intervention into a pending state criminal prosecution. The Bauman factors used by the federal circuit court to determine whether mandamus relief is appropriate in a particular civil proceedings do not include any "notions of comity and respect for state functions." Champion, 731 F.2d at 1408.
In addition, the conclusion of the federal circuit court in Christensen that the litigant was unable to obtain the desired relief on direct appeal referred directly to Christensen's right to be "represented by his chosen counsel at trial." 844 F.2d at 697. In Cole, the federal circuit court explained that "[p]arties normally have the right to counsel of their choice, so long as the counsel satisfy required bar admissions." 366 F.3d at 817. Petitioner in this case candidly admits that "as an indigent defendant, [he] has no constitutionally protected right to choose his own counsel." Petitioner's Reply, p. 2. Petitioner's right to counsel in this proceedings is substantially different from the right of a litigant in a civil action filed in the federal district court to choose his retained counsel.
In the event that Petitioner receives a death sentence in the state prosecution, he will be entitled to challenged his sentence in the state court on direct appeal and in post-conviction proceedings to assert his right to a new trial. Petitioner is not challenging the continued legality of his custody, e.g., McNeely, 336 F.3d 822 (constitutional right to a speedy trial), or the right to be free from retrial, e.g., Santamaria, 133 F.3d 1242 (Double Jeopardy Clause). A petitioner claiming constitutional injury from jury selection procedures or a discovery ruling has the same interest in avoiding trial prior to the resolution of his asserted constitutional violations as the Petitioner in this case. It is well established that defending oneself in a state criminal prosecution does not constitute irreparable injury in the special legal sense of that term required to justify federal interference. See Younger, 401 U.S. at 46; Kugler, 421 U.S. at 124-25; and Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 493 (1999). The exercise of federal jurisdiction at this stage in this proceedings in order to avoid the conduct of the trial does not amount to the irreparable injury necessary to circumvent the general rule against federal intervention in an ongoing state criminal prosecution.
CONCLUSION
The "policy against federal interference with state criminal prosecutions," is directly implicated in this case because an order from the federal court to the state court to reinstate prior counsel would interfere with the ongoing state criminal prosecution. Younger, 401 U.S. at 46. The exercise of federal jurisdiction by this court at this stage would undermine the provisions of AEDPA and the extremely deferential review of state court decisions under 28 U.S.C. § 2254(d)(1).
The court notes that an order from the federal court to reinstate counsel who is no longer an active member of the state bar would seriously impair the state prosecution.
Finally, this court notes that there are no other Younger exceptions which would apply in this case. See, e.g., Baffert v. California Horse Racing Bd., 332 F.3d 613, 621 (9th Cir. 2003) (bad faith prosecution without a reasonable expectation of obtaining a valid conviction); and Phillips, 56 F.3d 1030 (ineffective state process resulted in an unreasonably long delay). There are no circumstances in this case which would warrant an exception from the general rule that the petitioner must await the outcome of the pending state prosecution before commencing his federal habeas corpus action.
Petitioner's motion for summary judgment (#5) is DENIED. For the reasons stated herein, Petitioner's habeas corpus petition (#7) is DISMISSED. Judgment shall be entered in favor of Respondent and against Petitioner.
IT IS SO ORDERED.