                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           NOV 17 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

KENNETH CLAIR,                                   Nos. 05-99005

             Petitioner - Appellant,             D.C. No. CV-93-01133-GLT

  v.
                                                 MEMORANDUM *
ROBERT L. AYERS, of California State
Prison at San Quentin,

             Respondent - Appellee.




KENNETH CLAIR,                                   Nos. 08-75135

             Petitioner - Appellant,             D.C. No. 2:93-cv-01133-CAS

  v.
                                                 MEMORANDUM *
ROBERT L. AYERS, of California State
Prison at San Quentin,

             Respondent - Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                     Gary L. Taylor, District Judge, Presiding
                   Christina A. Synder, District Judge, Presiding

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted February 18, 2010
                               Pasadena, California

Before: PREGERSON, REINHARDT and WARDLAW, Circuit Judges.

      Petitioner Kenneth Clair appeals the district court’s denial of his petition for

habeas corpus. In addition to other claims, he contends that the district court

abused its discretion by denying without investigation his June 2005 request that

the court replace his appointed counsel with new counsel.

      As a federal habeas petitioner in a capital case, Clair has a statutory right to

counsel. See 18 U.S.C. § 3599(a)(2). “Congress’ provision of a right to counsel

under [18 U.S.C. § 3599] reflects a determination that quality legal representation

is necessary in capital habeas corpus proceedings in light of the seriousness of the

possible penalty and . . . the unique and complex nature of the litigation.”

McFarland v. Scott, 512 U.S. 849, 855 (1994) (internal quotations and citation

omitted). This “right to counsel necessarily includes a right for that counsel

meaningfully to research and present a defendant’s habeas claims.” Id. at 858.

      Section 3599 provides that counsel may be changed upon a defendant’s

motion, but does not provide a standard under which such a motion should be

adjudicated. See 18 U.S.C. § 3599(e). There is, however, a statutory standard for



                                           2
when courts may change counsel for noncapital habeas defendants, who are not

entitled to counsel but may be appointed counsel at the discretion of the court: a

“court may, in the interests of justice, substitute one appointed counsel for another

at any stage of the proceedings.” 18 U.S.C. §3006A (a)(2)(B) (emphasis added).

Given the importance that it placed on “quality legal representation” for capital

habeas defendants, Congress must have intended to provide such petitioners with

at least as much opportunity to replace counsel with whom they are dissatisfied as

it provides noncapital habeas petitioners who have no statutory entitlement to

counsel. Accordingly, when faced with Clair’s request for new counsel, the district

court was required at a minimum to ascertain whether the interests of justice

required that the request be granted.

       The district court did not explain its decision, but it is clear from the record

that it either failed to apply the correct “interests of justice” standard or did so in an

implausible, illogical or unreasonable manner. Accordingly, it abused its

discretion. See United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)

(en banc). On June 16, 2005, Clair wrote a letter to the court, requesting that new

counsel be appointed. The court was aware that Clair was having problems with

his counsel: only three months earlier it had received from him a letter alleging a

longstanding pattern of inattention to his case. In response to that letter, the district


                                            3
court made inquiry of Clair’s counsel, who notified the court in April 2005 that

they had spoken with Clair and that he was willing to have them continue to

represent him for the time being. The June 16th letter repeated allegations made in

the previous letter, but also included a serious additional allegation: that a private

investigator working on Clair’s behalf had located important physical evidence

from the crime scene that had never been tested, and that his counsel, despite

having been informed of the evidence, had made no effort to obtain it, analyze it or

present it to the court. Clair’s private investigator sent the court a letter

substantiating Clair’s claims. The court received and opened the private

investigator’s letter, but returned it without filing it, citing Local Rule 83-2.11.

      The physical evidence that Clair claimed had been located was potentially of

great importance to Clair’s habeas petition. His conviction was based upon

circumstantial evidence, and occurred before the advent of DNA testing and other

modern forensic techniques. Faced with Clair’s second letter requesting new

counsel and the serious allegations therein, the court was required to ascertain, at

the least, whether the interests of justice required substitution of counsel.

      “[M]eaningful assistance of counsel is essential to the fair administration of

the death penalty.” Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 813 (9th Cir.

2003). Counsel who do not act within a reasonable time on material information


                                            4
relating to their clients’ petition are not providing meaningful assistance. Having

received Clair’s allegations, which implicated the fairness of the proceeding, the

district court could not have plausibly made a determination whether changing

counsel was in the interest of justice without making some inquiry into Clair’s

allegations. Certainly Clair’s earlier expression of discontent might have alerted

the court to the possibility that Clair was not getting the benefits of meaningful

assistance of counsel. Following receipt of Clair’s June 16th letter, however, the

district court made no inquiry into the truth of Clair’s allegations or their potential

impact on the case before it. Instead, the district judge without explanation denied

the motion on the same day that he denied Clair’s petition, and then retired the

following day. The court’s failure to inquire as to Clair’s allegations was an

unreasonable application of the law to the facts in front of it, and an abuse of

discretion.

      The state misperceives Clair’s claim, framing its response as if he were

asserting a claim for ineffective assistance of counsel. As the state accurately

points out, habeas petitioners claiming ineffective assistance of counsel face steep

hurdles. See District Attorney’s Office for Third Judicial Dist. v. Osborne, 129

S.Ct. 2308, 2320 (2009); Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993).

Clair’s contention, however, was not that his habeas counsel was constitutionally


                                            5
ineffective, but rather that the district court failed properly to exercise its discretion

with respect to his request for his statutory right with regard to a change of

counsel. As with other matters concerning the district court’s exercise of its

discretion, we must reverse the district court on a showing that it abused that

discretion. Here, by failing to exercise its discretion at all, it abused it.

       Accordingly, we vacate the district court’s denial of Clair’s request for new

counsel, as well as the subsequent denial of his petition for writ of habeas corpus.

The district court’s failure to exercise its discretion foreclosed the possibility that

different counsel, upon proper consultation with Clair, would have taken additional

necessary action with respect to prosecuting Clair’s habeas petition, including the

appropriate steps — such as seeking an evidentiary hearing or seeking a stay to

pursue proper relief in state court — to ensure that the allegedly newly discovered

physical evidence was given due consideration and, if appropriate, incorporated

into Clair’s habeas petition.1




       1
        We note that the counsel appointed to represent Clair on appeal raised
related issues in a Rule 60(b) motion to the district court, which the district court
denied without a hearing. Rule 60(b) provides a very limited opportunity to
redress defects in a district court decision and 60(b) motions are adjudicated under
a different standard than that under which a request by Clair to modify his petition
prior to that petition’s denial would have been adjudicated.

                                             6
      Because Clair has been appointed new counsel on appeal,2 and because the

district judge has retired, the most reasonable solution to the conundrum of how to

correct on remand the district court’s abuse of discretion is to treat Clair’s current

counsel as if he were the counsel who might have been appointed had the district

court properly exercised its discretion in response to Clair’s request for new

counsel. See Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993). In that

role, counsel shall consult with Clair and determine what actions and submissions

to the district court, if any, would be appropriate before the district court rules

anew on Clair’s habeas petition, and then proceed accordingly. The district court

shall, in turn, consider any such submissions, including any requests from counsel

to amend the petition to add claims based on or related to the alleged new physical

evidence, as if they had been made prior to the ruling on the writ that we have

vacated and shall make all further determinations that may be required in

accordance with applicable law.




      VACATED and REMANDED




      2
        John R. Grele was appointed counsel of record on January 10, 2006, and
that appointment shall continue through all further proceedings absent a motion
from counsel or Clair. See 18 U.S.C. § 3599(e).

                                            7
