                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RICHARD GONZALES                         No. 18-56047
SAMAYOA,
       Petitioner-Appellant,            D.C. No.
                                  3:00-CV-02118-W-AJB
              v.

RON DAVIS, Warden of the                  OPINION
California State Prison at San
Quentin,
        Respondent-Appellee.


      Appeal from the United States District Court
        for the Southern District of California
      Thomas J. Whelan, District Judge, Presiding

         Argued and Submitted March 12, 2019
               San Francisco, California

                    Filed July 3, 2019

     Before: William A. Fletcher, Paul J. Watford,
       and Andrew D. Hurwitz, Circuit Judges.

             Opinion by Judge W. Fletcher;
              Dissent by Judge Watford
2                       SAMAYOA V. DAVIS

                            SUMMARY*


                    Appointment of Counsel

   The panel reversed the district court’s denial of a motion,
brought by a California death-row prisoner seeking state
clemency, for the appointment of additional counsel from the
Federal Public Defender Services for the District of Arizona,
and remanded.

   The panel held that the availability of state-appointed
clemency counsel does not prevent the district court from
appointing additional clemency counsel under 18 U.S.C.
§ 3599 for purposes of state clemency proceedings. The
panel remanded for the district court to determine whether
appointment of additional counsel to represent petitioner is
appropriate under the statute.

    Dissenting, Judge Watford wrote that the majority’s
apparent reading of 18 U.S.C. § 3599(a)(2), which requires
that an inmate show that he is “financially unable to obtain
adequate representation,” as requiring petitioner to show only
that he is indigent, cannot be squared with Harbison v. Bell,
556 U.S. 180 (2009), where the Supreme Court declared that
an inmate’s state-furnished representation may render him
ineligible for appointment of counsel under § 3599,
notwithstanding his indigency.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    SAMAYOA V. DAVIS                        3

                        COUNSEL

Glen P. Niemy (argued), Salem, Massachusetts, for
Petitioner-Appellant.

Robin H. Urbanski (argued) and Annie Featherman Fraser,
Deputy Attorneys General; Holly D. Wilkens, Supervising
Deputy Attorney General; Julie L. Garland, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant Attorney
General; Office of the Attorney General, San Diego,
California; for Respondent-Appellee.


                         OPINION

W. FLETCHER, Circuit Judge:

    We are asked to decide in this case whether 18 U.S.C.
§ 3599 permits federal appointment of additional counsel to
represent a California death-row prisoner who is seeking state
clemency where the State of California also provides for state
clemency counsel. We have jurisdiction under 28 U.S.C.
§ 2253 and we conclude the statute so permits. We remand
to the district court to determine whether appointment of
additional counsel to represent Richard Samayoa is
appropriate under the statute.

                   I. Factual Background

   Richard Samayoa was convicted in 1988 of a double
murder and sentenced to death. He exhausted all state
remedies when the California Supreme Court summarily
denied review of his state habeas petition in 2000. In 2001,
Glen Niemy, a sole practitioner, was appointed as Samayoa’s
4                    SAMAYOA V. DAVIS

federal habeas counsel pursuant to a statute now codified at
18 U.S.C. § 3599(a)(2). In 2002, Niemy was also appointed
by the California Supreme Court “for purposes of all
postconviction proceedings in this court, and for subsequent
proceedings, including preparation and filing of a petition for
clemency with the Governor of California, as appropriate.”

    Niemy, together with another attorney appointed in 2001,
represented Samayoa in his federal 28 U.S.C. § 2254 habeas
proceedings. The district court denied Samayoa’s habeas
petition in 2009. Samayoa v. Ayers, 649 F. Supp. 2d 1102
(S.D. Cal. 2009). A divided panel of this Court affirmed,
Samayoa v. Ayers, 649 F.3d 919 (9th Cir. 2011), and the
Supreme Court denied certiorari, 132 S. Ct. 1564 (2012).

    Niemy’s appointed federal habeas co-counsel left the
practice of law. Six years after the denial of certiorari, on
May 14, 2018, Samayoa, now represented only by Niemy,
moved in federal district court for the appointment of
additional counsel from the Federal Public Defender Services
for the District of Arizona (FPD-AZ). In the motion, Niemy
wrote that he had been working on Samayoa’s case alone on
a pro bono basis, “with the exception of a limited number of
hours compensated by the California Supreme Court,” but
could “no longer afford to do so.” He supplied a list of
“remaining tasks,” including a full clemency investigation
and petition, as well as the filing of petitions under Atkins v.
Virginia, 536 U.S. 304 (2002), and Ford v. Wainwright,
477 U.S. 399 (1986). He informed the court that he “has
never done a clemency proceeding and needs the expertise of
an agency accustomed to such a process.” He identified
FPD-AZ as such an agency and noted that FPD-AZ had
already appeared as clemency counsel in ten cases, including
three outside of Arizona and two as “co-counsel with [court-
                    SAMAYOA V. DAVIS                       5

appointed] counsel.” Niemy also wrote that neither he nor
FPD-AZ was seeking separate federal funding as part of the
motion.

    The district court denied Samayoa’s motion, concluding
that because California provides for state-appointed clemency
counsel, “Petitioner does not appear to qualify for the
appointment of federal counsel under § 3599(a)(2).” The
court reasoned that “it seems appropriate to direct [the]
application [for additional counsel] to the court that
previously appointed counsel for [clemency] proceedings, in
this case the California Supreme Court.” Samayoa filed a
motion for reconsideration, which the district court also
denied.

   Samayoa timely appealed.

                   II. Legal Background

    The statute at issue, 18 U.S.C. § 3599, provides for
federal appointment and compensation of counsel for indigent
defendants in capital cases. Section 3599(a)(1), which
provides for federal appointment of trial and sentencing
counsel, applies only to federal defendants. See Harbison v.
Bell, 556 U.S. 180, 186 (2009). Section 3599(a)(2) provides
for federal appointment of counsel for death-row petitioners
seeking federal habeas relief, whether the petitioner was
convicted in state or federal court:

       In 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
6                   SAMAYOA V. DAVIS

       representation or investigative, expert, or
       other reasonably necessary services shall be
       entitled to the appointment of one or more
       attorneys and the furnishing of such other
       services in accordance with sections (b)
       through (f).

Section 3599(e) extends the appointment of such attorneys to
further proceedings:

       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, . . . and shall
       also represent the defendant in such
       competency proceedings and for executive or
       other clemency as may be available to the
       defendant.

(Emphasis added.) Section 3599(f) provides that once federal
habeas counsel has been appointed, he or she can seek
“investigative, expert, or other services . . . reasonably
necessary for the representation of the defendant.”

    In Harbison v. Bell, 556 U.S. 180 (2009), the Supreme
Court held that an attorney’s representation under § 3599(e)
includes state clemency proceedings. In that case, a
petitioner’s federal habeas counsel sought to expand the
scope of her representation after “the Tennessee Supreme
Court held that state law does not authorize the appointment
of state public defenders as clemency counsel.” Id. at 182.
The Supreme Court framed the question as “whether
                     SAMAYOA V. DAVIS                          7

18 U.S.C. § 3599 authorizes counsel appointed to represent
a state petitioner in 28 U.S.C. § 2254 proceedings to represent
him in subsequent state clemency proceedings.” Id.
at 183–84.

    Beginning with a “straightforward reading of the statute,”
at 185, the Court concluded, “Because state clemency
proceedings are ‘available’ to state petitioners who obtain
representation pursuant to subsection (a)(2), the statutory
language indicates that appointed counsel’s authorized
representation includes such proceedings.” Id. at 185–86.
The Court noted that “Congress’ sequential enumeration” in
§ 3599(e) “emphasizes continuity of counsel.” Id. at 193.
The Court posited that “Congress likely appreciated that
federal habeas counsel are well positioned to represent their
clients in the state clemency proceedings that typically follow
the conclusion of § 2254 litigation” because “the work of
competent counsel during habeas corpus representation may
provide the basis for a persuasive clemency application.” Id.
The Court noted that, in Harbison’s case, habeas counsel had
uncovered a Brady violation that, although procedurally
defaulted, could “be marshaled” in a state clemency
application. Id.

    The government had argued that the Court’s reading
“would require a lawyer who succeeded in setting aside a
state death sentence during postconviction proceedings to
represent her client during an ensuing state retrial.” Id. at
189. The Court wrote that the government overstated the
“unacceptable results” that would follow from its reading of
the statute. Id. at 188. It wrote that a retrial following habeas
relief is “not properly understood as a ‘subsequent stage’ of
judicial proceedings but rather as the commencement of new
8                    SAMAYOA V. DAVIS

judicial proceedings” and therefore outside the scope of
§ 3599(e). Id. The Court continued,

       Moreover, subsection (a)(2) provides for
       counsel only when a state petitioner is unable
       to obtain adequate representation. States are
       constitutionally required to provide trial
       counsel for indigent defendants. Thus, when
       a state prisoner is granted a new trial
       following § 2254 proceedings, his state-
       furnished representation renders him
       ineligible for § 3599 counsel until the
       commencement of new § 2254 proceedings.

Id.

    In conclusion, the Court held “that § 3599 authorizes
federally appointed counsel to represent their clients in state
clemency proceedings and entitles them to compensation for
that representation.” Id. at 194.

                       III. Discussion

    The California Attorney General’s Office (hereinafter
“State”) argues that the district court can appoint additional
counsel under § 3599 only if Samayoa can show “he is unable
to obtain adequate representation from the state to pursue
executive clemency.” We disagree. A district court’s
interpretation of a statute is a question of law which we
review de novo. Carson Harbor Vill., Ltd. v. Unocal Corp.,
270 F.3d 863, 870 (9th Cir. 2001) (en banc).
                    SAMAYOA V. DAVIS                        9

             A. Niemy’s Federal Appointment

    To start, it is uncontested that Niemy remains Samayoa’s
federally appointed counsel and represents Samayoa in his
state clemency proceedings pursuant to that appointment.
Niemy’s status as clemency counsel frames the question
before us—whether additional clemency counsel may be
appointed pursuant to § 3599.

    The availability of state appointment of clemency counsel
is irrelevant to federally appointed counsel’s ongoing
representation of a death-row client in state clemency
proceedings. Harbison instructs that the “straightforward”
reading of § 3599(e) controls. 556 U.S. at 185. That section
says that, unless replaced, federally appointed habeas counsel
“shall represent the defendant . . . in such competency
proceedings and proceedings for executive or other clemency
as may be available to the defendant.” 18 U.S.C. § 3599(e)
(emphasis added). This language does not invite a blanket
exception if the state also provides for clemency counsel.

    We disagree with the Sixth Circuit’s holding to the
contrary in Irick v. Bell, 636 F.3d 289 (6th Cir. 2011). In
Irick, the Sixth Circuit held that a Tennessee death-row
inmate’s federal habeas counsel could not receive federal
funding to represent his client in several state court
proceedings identified in § 3599(e) because state law
provided for appointment of counsel in those proceedings.
Id. at 290. The Sixth Circuit wrote, “In Harbison, the
Supreme Court arrived at its holding only after noting that
state law did not authorize the appointment of state public
defenders for the purpose of pursuing state clemency
proceedings.” Id. at 291. We find this reasoning
unpersuasive. The Court in Harbison did note at the outset
10                  SAMAYOA V. DAVIS

that Tennessee did not provide for clemency counsel.
Harbison, 556 U.S. at 182. But that fact was provided as part
of the Court’s opening narrative to explain how the case
arose. See id. Nowhere in the Court’s statement of the
question on certiorari or in its discussion of the case did it
condition the scope of § 3599(e) on the state’s failure to
provide clemency counsel.

    Harbison’s discussion of why Congress intended
§ 3599(e) to include state clemency proceedings supports the
plain reading of the text. One of Harbison’s primary
rationales was that habeas counsel is uniquely positioned to
advocate for clients in subsequent proceedings. Harbison
emphasized “continuity of counsel,” noting that “the work of
competent counsel during habeas corpus representation may
provide the basis for a persuasive clemency application.” Id.
at 193. Harbison was thus concerned with not only whether
a petitioner was represented in clemency proceedings, but
also by whom.

    Indeed, this case mirrors Harbison in illustrating the
benefit of continuity of counsel. In Harbison, the Court noted
that federal habeas counsel had uncovered a Brady violation
that, though defaulted and not a ground for habeas relief,
“could be marshaled” in a state clemency application. Id.
Similarly, here, Judge Reinhardt’s dissent in Samayoa’s
earlier appeal discusses new mitigation evidence uncovered
by habeas counsel about Samayoa’s “unimaginably horrific”
upbringing. Samayoa, 649 F.3d at 930. Though the evidence
did not lead to habeas relief, it is precisely the type of
evidence that “could be marshaled” in a state clemency
application. Harbison, 556 U.S. at 193. Harbison’s
emphasis on the importance of continuity of counsel is
particularly salient here, confirming that continuing
                     SAMAYOA V. DAVIS                        11

representation by habeas counsel under § 3599(e) should not
depend on whether a State simultaneously provides for the
appointment of clemency counsel. See id.

    As applied to Niemy, Harbison is clear—Niemy is
authorized under § 3599(e) to continue to represent Samayoa
in his California clemency petition, regardless of any
provisions under California law regarding state appointment
of clemency counsel.

          B. Appointment of Additional Counsel

    We now turn to the operative question in this case: does
the availability of state-appointed clemency counsel prevent
the district court from appointing additional clemency
counsel under § 3599 during post-habeas proceedings?

    Section 3599(f) permits federally appointed counsel to
seek “investigative, expert, or other services . . . reasonably
necessary for the representation of the defendant” in all
relevant stages of proceedings. Niemy has informed the court
that, due to his lack of experience with clemency petitions,
the appointment of FPD-AZ as additional counsel is
necessary for the adequate representation of his client. The
statute already contemplates that multiple attorneys may be
necessary for the representation of a death-row inmate. See
§ 3599(a)(2) (“[A]ny defendant who is or becomes financially
unable to obtain adequate representation . . . shall be entitled
to the appointment of one or more attorneys”) (emphasis
added). We conclude that § 3599(f) authorizes a court to
consider, upon the request of an attorney appointed under
§ 3599(a)(2), whether additional counsel is a “reasonably
necessary” service for the representation of a death-row
inmate at any stage of proceeding where the appointed
12                   SAMAYOA V. DAVIS

attorney is authorized to represent the client pursuant to
§ 3599(e).

    Section 3599(e) also contemplates that federal counsel
may be replaced in subsequent stages by “similarly qualified
counsel” upon a motion from the attorney or defendant.
Niemy was originally appointed, along with another attorney,
in 2001. That second attorney has left the practice of law and
no longer represents Samayoa. The Fifth Circuit’s decision
in Battaglia v. Stephens, 824 F.3d 470 (5th Cir. 2016), is
instructive. In that case, the Fifth Circuit granted an inmate’s
motion under § 3599 to substitute federal counsel for
purposes of state competency proceedings. Id. at 474. The
inmate’s federal habeas counsel had not officially withdrawn
his representation, but the court determined that he had
effectively abandoned his representation of Battaglia. Id. As
in Battaglia, the second attorney here has not officially
withdrawn, but has effectively abandoned representation of
Samayoa. It would therefore be appropriate for the district
court to replace her with FPD-AZ under § 3599(e), provided
FPD-AZ is “similarly qualified.”

    Finally, even assuming as the dissent does that Samayoa’s
request for additional counsel triggers a new inquiry under
§ 3599(a)(2), that subsection does not reference state-
appointed counsel. Section 3599(a)(2) instructs that “any
defendant who is or becomes financially unable to obtain
adequate representation . . . shall be entitled to the
appointment of one or more attorneys.” The only inquiry that
the statute requires is whether a petitioner is “financially
unable” to obtain adequate representation. The statute does
not bar the district court from appointing additional counsel
simply because a defendant can obtain representation
through other sources.
                    SAMAYOA V. DAVIS                      13

                        Conclusion

    We hold that state provisions for clemency counsel do not
bar the appointment of additional counsel under § 3599 for
purposes of state clemency proceedings. We remand to the
district court for further proceedings consistent with this
opinion.

   REVERSED and REMANDED.



WATFORD, Circuit Judge, dissenting:

    I agree with my colleagues that the scope of Glen
Niemy’s federal appointment under 18 U.S.C. § 3599 extends
to state clemency proceedings, and that the scope of his
representation is unaffected by California’s provision of
counsel for clemency purposes. Niemy’s request for
appointment of co-counsel, however, triggers a new inquiry
under § 3599(a)(2). That provision authorizes a federal court
to appoint “one or more attorneys” to represent a death-row
inmate in state clemency proceedings, but only if the inmate
can show that he is “financially unable to obtain adequate
representation” on his own. An inmate cannot make that
showing if the State itself, free of charge, has appointed
counsel capable of providing adequate representation.

   If the California Supreme Court were to appoint the
Arizona Federal Public Defender’s Office to represent
Richard Samayoa in state clemency proceedings free of
charge, he would not be able to show that he is financially
unable to obtain adequate representation on his own. That is
why the district court sensibly concluded that Niemy must
14                   SAMAYOA V. DAVIS

make his request for the appointment of co-counsel to the
California Supreme Court in the first instance. If that court
for whatever reason declines Niemy’s request, the district
court should then appoint co-counsel under § 3599(a)(2), as
Niemy has persuasively shown why Samayoa needs the
assistance of co-counsel to receive adequate representation in
his state clemency proceedings.

    My colleagues appear to read subsection (a)(2) as
requiring Samayoa to show only that he is indigent in order
to be entitled to the appointment of co-counsel. That reading
does make some sense in light of the statute’s reference to the
inmate’s being “financially” unable to obtain adequate
representation. But in my view the majority’s reading cannot
be squared with the Supreme Court’s decision in Harbison v.
Bell, 556 U.S. 180 (2009), where the Court declared that an
inmate’s state-furnished representation may indeed render
him ineligible for appointment of counsel under § 3599,
notwithstanding his indigency. Id. at 189.
