     Case: 13-70001      Document: 00512987375          Page: 1    Date Filed: 03/31/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                      No. 13-70001                             FILED
                                                                            March 30, 2015
                                                                            Lyle W. Cayce
WILLIAM SPEER,                                                                   Clerk

                                                 Petitioner - Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent - Appellee




                  Appeal from the United States District Court
                       for the Eastern District of Texas


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      In Martinez v. Ryan 1 and Trevino v. Thaler 2 the Supreme Court held that
a habeas petitioner’s procedural default of an ineffective assistance of trial
counsel claim could be excused by a federal habeas court if, under certain
circumstances, the petitioner received ineffective assistance of counsel during
the state collateral review process. 3




      1 132 S. Ct. 1309 (2012).
      2 133 S. Ct. 1911 (2013).
      3 See Martinez, 132 S. Ct. at 1318-19; Trevino, 133 S. Ct. at 1921.
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                                        No. 13-70001
       Now pending before this court is a motion by the petitioner’s federal
habeas counsel to withdraw as counsel. Counsel argues that because he also
represented the petitioner during state habeas proceedings, it would be a
conflict of interest for him to now determine whether his state conduct was
ineffective. Speer also requests the appointment of new counsel to investigate
whether he has any viable claim under the rule established in Martinez and
Trevino.
       We do not read the Supreme Court’s narrowly crafted decisions in
Martinez or Trevino to require in this case the appointment of additional
federal habeas counsel. Those cases provide only that the federal habeas court
is not procedurally barred from hearing a prisoner’s ineffective assistance of
trial counsel claim if the petitioner’s state habeas counsel was constitutionally
ineffective. 4 They do not create a constitutional right to counsel on collateral
review.      They only offer remedial relief from procedural bars to the
presentation of federal claims attending that defective performance. 5
       It is said that the petitioner is entitled to counsel on habeas review and
that means conflict-free counsel. That there is no such constitutional right to
counsel on collateral review aside, the petitioner enjoyed that right.                      The
lawyer here had no conflict in arguing the constitutional claim of ineffective




       4  See Martinez, 132 S. Ct. at 1320 (emphasizing the “limited nature” of the exception
to the procedural default rule); see also Trevino, 133 S. Ct. at 1922 (Roberts, C.J., dissenting)
(“We were unusually explicit about the narrowness of our decision [in Martinez].”).
        5 We also do not interpret the Supreme Court’s recent decision in Christeson v. Roper,

135 S. Ct. 891 (2015), as supporting appointment of new or additional counsel for Speer. The
Court considered whether to appoint new counsel when the possible claim of ineffective
assistance of counsel had already been identified. The default was the failure of state habeas
attorneys to contact their client until after the time for filing for habeas had expired; that
delay made equitable tolling the only possible avenue for relief, which required arguing their
own ineffectiveness. Id. at 892-93. Substitute counsel therefore needed to be appointed. Id.
at 895-96. The obvious distinction is that Speer seeks counsel to search the record for
whether there was any as-yet-unidentified default by state habeas counsel.
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                                       No. 13-70001
trial counsel to the federal court. It signifies that the petitioner continues to
enjoy all the rights Martinez and Trevino afford.
      The petitioner’s present lawyer is conflicted only in the sense that every
lawyer charged to examine the performance of counsel is conflicted in that task
when the performance is his own. That has no bearing on counsel’s charge to
argue the substantive claim of ineffective assistance of trial counsel. We do
not read the Supreme Court as requiring a second federally appointed lawyer
to plow the same ground ably plowed by the first federally appointed lawyer
with no suggestion or hint of any shortcoming on his part. By this manner of
reason there is no end to the succession of potential appointments, for each
previous lawyer might have been ineffective.
      Though we do not interpret Martinez or Trevino as creating the right to
new counsel that Speer insists those cases do, our task is not done. 18 U.S.C.
§ 3599 authorizes federal judges to appoint counsel for indigent federal habeas
defendants in capital cases. 6 We may also appoint supplemental counsel in
federal habeas proceedings. 7 We conclude that this authority should be used
in the present case in the interest of justice. Under that power, and mindful of
the systematic benefits of efficiently resolving all potential claims as early in
the habeas process as possible, we direct the appointment of supplemental
counsel for the sole purpose of determining whether Speer has additional
habeas claims that ought to have been brought.
      The congressional grant of appointment power in habeas cases came in
response to the challenges petitioners face in the complex and difficult law of
the death penalty. This authority enables federal appointments of separate
counsel for state and federal habeas, an answer to today’s perceived problem.



      6   18 U.S.C. § 3599(a)(2).
      7   Id. (court may appoint “one or more attorneys”).
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                                       No. 13-70001
In a case like this one, where present counsel has been actively engaged in this
litigation for several years, and moves only late in the process for new counsel,
that second appointment in the discretion of the district court may be of
counsel who, while independent, counsel, would benefit from the often rich
resource of the counsel who has been through the state habeas process and who
has prosecuted the federal habeas action with no hint of inability. 8 Such action
is faithful to Congress’s clear intent to promote continuity of representation in
federal habeas actions. 9
       We support this practical answer in service of the larger goals of finality
and federalism even though for now its dress is not unlike a solution in search
of a problem. We note in passing that we do not know whether the quality of
representation by state habeas counsel who have subsequently been appointed
as federal habeas counsel will result in such number of claims of ineffective
assistance of counsel claims as to justify this belt-and-suspenders treatment,
with its attendant problems of coordination and inefficiencies between the two
attorneys, trade-offs which do the petitioner no service. 10               This empirical


       8  Here, for example, the underlying constitutional violations alleged in the habeas
petition were a speedy trial and Brady claim. No ineffectiveness of trial counsel claims were
raised either at the federal district court or before our court.
        9 See 18 U.S.C. § 3599(e) (“Unless replaced by similarly qualified counsel upon the

attorney’s own motion or upon motion of the defendant, each attorney so appointed shall
represent the defendant throughout every subsequent stage of available judicial
proceedings.”). Under the plain text of the statute, existing counsel must continue unless
excused by the court, which we decline to do in this instance, in light of the fact that any
conflict appears to have been cured by the appointment of supplemental counsel to address a
specific legal question: whether any procedural default of ineffective assistance of trial
counsel claims by state habeas counsel may be excused.
        10 At the onset of the federal habeas litigation, the district judge may, of course,

appoint as single federal habeas counsel a lawyer who did not participate in the state habeas
action. We appoint limited, supplemental counsel here so as not to lose the benefits and
expertise of existing counsel, with all the inefficiencies that transition in representation
would entail.
        Our decision addresses the universe of cases where petitioner’s counsel in his federal
petition was also his state habeas counsel. We do not reach, and express no opinion on, the
separate question of whether the federal district judge should appoint the lawyer who
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                                    No. 13-70001
question is, in any event, beyond the scope of our decision. Its answer must lie
in the United States District Courts, informed by their own experiences.
      We express no opinion on whether any new claims would be barred by
the Antiterrorism and Effective Death Penalty Act. 11 New claims, if any, must
be resolved by the district court in the first instance.
      Construing present counsel’s motion to withdraw as a motion for the
appointment of supplemental counsel, we GRANT the motion for the
appointment of new supplemental counsel. Because the claims he brings are
yet unresolved, we DENY the motion of present counsel to withdraw. We
REMAND THIS CASE IN PART to the district court solely to appoint
supplemental counsel consistent with this opinion and the requirements of 18
U.S.C. § 3599, and to consider in the first instance whether Speer can establish
cause for the procedural default of any ineffective-assistance-of-trial-counsel
claims pursuant to Martinez and Trevino that he may raise, and if so, whether
those claims merit relief. We retain jurisdiction in the remainder of the case
and STAY proceedings pending the conclusion of the district court’s review.




prosecuted the state collateral review as federal counsel at the beginning of the federal
habeas action.
       11 See 28 U.S.C. § 2254.

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                                 No. 13-70001
PRISCILLA R. OWEN, Circuit Judge, concurring:
      I concur in the appointment of additional counsel essentially for the
reasons set forth in my concurring opinion in Mendoza v. Stephens, No. 12-
70035, -- F.3d -- (5th Cir. 2015) (OWEN, J. concurring).




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