    Case 4:14-cv-01055-0 Document 1 Filed 12/30/14         Page 1 of 4 PageiD 1




                IN THE UNITED STATES DISTRICT COURT
                FOR THE NORTHERN DISTRICT OF TEXAS
                             FT. WORTH DIVISION


                                               )     Civil No.
KWAME A. ROCKWELL                              )
TDCJ# 999570                                   )     (CAPITAL CASE)
         Petitioner                            )
v.                                             )
                                               )
WILLIAM STEPHENS, Director                     )
Texas Department of Criminal Justice           )
Correctional Institutional Division,           )
           Respondent ·                        )
                                               )


         MOTION FOR APPOINTMENT OF FEDERAL COUNSEL

      Undersigned counsel, Brad D. Levenson, Director of the Texas Office of
Capital Writs ("OCW"), respectfully moves this Court to appoint David R. Dow as
lead counsel and Jeffrey R. Newberry as co-counsel to represent Mr. Kwame
Rockwell in his federal habeas corpus proceedings.
      This Motion is made within the fifteen (15) day time period required by
Texas Code of Criminal Procedure 11.071, section 2(e) ("If the court of criminal
appeals denies an applicant relief under this article, an attorney ... shall, not later
than the 15th day after the date the court of criminal appeals denies relief ... move
for the appointment of counsel in federal habeas review under 18 U.S.C. Section
3599."). Because the undersigned is not permitted to "represent a defendant in a



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federal habeas review" (see Tex. Govt. Code, § 78.054(b)), new counsel must now
be appointed.
       Mr. Rockwell was sentenced to death in the Criminal District Court No.4 of
Tarrant County, Texas on January 27, 2012. On December 11, 2013, the Texas
Court of Criminal Appeals ("CCA") affirmed Mr. Rockwell's sentence on direct
appeal. Rockwell v. State, No. AP-76,737 (Tex. Crim. App. 2013). On December
17, 2014, the CCA denied relief in state habeas corpus proceedings. Ex parte
Rockwell, No. WR-80,232-01 (Tex. Crim. App. 2014) (unpublished).
       Pursuant to Texas Code of Criminal Procedure Article 11.071, undersigned
counsel and the OCW have represented Mr. Rockwell. Mr. Rockwell was then and
                                               \


is now without the means to retain counsel. Mr. Rockwell is an indigent person,
lacking the funds necessary to retain counsel and must be appointed counsel
"throughout ... all available post-conviction process, together with applications
for stays of execution and other appropriate motions and procedures ... [and] in
such competency proceedings and proceedings for executive or other clemency as
may be available to the defendant." 18 U.S.C. § 3599(e); see also Harbison v. Bell,
556   u.s. 180 (2009).
       Mr. Rockwell is entitled to the appointment of counsel under 18 U.S.C. §
3599(a).    He has never had his constitutional claims -for relief addressed by a
federal court. He is entitled to the assistance of counsel in order to present those
claims. See McFarlandv. Scott, 512 U.S. 849,857-58 (1998).
       David R. Dow is an attorney licensed to practice law in the State of Texas,
the United States District Court for the Northern District of Texas, the United
States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United
States.    Mr. Dow is presently a Distinguished Professor at the University of
Houston Law Center where he runs a death penalty clinic, and since 1988 has


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represented approximately fifty death row inmates in their post-conviction appeals,
including both state and federal habeas corpus proceedings.
        Jeffrey R. Newberry is an attorney licensed to practice law in the State of
Texas and the United States District Courts for the Southern, Eastern, and Northern
Districts of Texas. Working with Mr. Dow, Mr. Newberry has been engaged full-
time in the representation of death-sentenced clients (mostly in federal habeas
proceedings) since January 2011.
        Accordingly, the undersigned respectfully requests that this Court appoint
Mr. Dow and Mr. Newberry as counsel for Mr. Rockwell, pursuant to 18 U.S.C. §
3599.


                                             Respectfully submitted,


DATED:        December 30, 2014                    o.L_
                                       s//S"''-J"Li'NENSON
                                             BRAD D.
                                             Texas Bar No. 24073411
                                             Office of Capital Writs
                                             1700 N. Congress Ave., Suite 460
                                             Austin, Texas 78701
                                             512-463-8502- direct
                                             512-463-8590- facsimile




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                        CERTIFICATE OF SERVICE

      On December 30, 2014, a copy of the foregoing Motion was served on the
Office of the Attorney General by United States mail at the following address:

Office of the Attorney General
Post Office Box 12548
Austin, Texas 78711-2548




                     CERTIFICATE OF CONFERENCE

      No conference has been held because opposing counsel has not made an
appearance in these proceedings.




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