In re: Elizabeth Peiffer

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 28, 2023
• Docket: 23-005
• Status: Unpublished

Opinion

USCA4 Appeal: 23-5 Doc: 58 Filed: 09/28/2023 Pg: 1 of 10

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-5

In re: ELIZABETH JANE PEIFFER,

Appellant.

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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID ANTHONY RUNYON,

Defendant.

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JAMES M. MCCAULEY, Esq., PROFESSOR JAMES E. MOLITERNO,

Amici Supporting Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, Senior District Judge. (4:08-cr-00016-RBS-DEM- 3; 4:15-cv-00108-RBS)

Submitted: September 5, 2023 Decided: September 28, 2023

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. USCA4 Appeal: 23-5 Doc: 58 Filed: 09/28/2023 Pg: 2 of 10

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Elizabeth Peiffer, one of two lead attorneys representing David Runyon in this

habeas proceeding, filed a motion to withdraw as counsel for Runyon on the ground that

her mother was diagnosed with cancer and caring for her would distract from an appropriate

representation of Runyon. The district court denied Peiffer’s motion, finding that it was

“in the interests of justice for Ms. Peiffer to remain as counsel for” Runyon. Peiffer then

filed this appeal. Because we cannot, in the circumstances presented, conclude that the

district court abused its discretion, we affirm. *

In April 2007, Runyon shot and killed Cory Allen Voss pursuant to a murder-for-

hire conspiracy that he entered into with Voss’s wife and her paramour. A jury convicted

Runyon on multiple charges involving murder, and, on the jury’s recommendation, the

district court sentenced Runyon to death. On appeal, we affirmed. United States v. Runyon,

707 F.3d 475 (4th Cir. 2013), cert. denied, 574 U.S. 813 (2014). Thereafter, Runyon filed

a motion under 28 U.S.C. § 2255 to vacate or correct his sentence, asserting 18 claims for

relief. The district court, in a thorough 246-page opinion, denied Runyon’s motion.

Runyon v. United States, 228 F. Supp. 3d. 569 (E.D. Va. 2017). We granted a certificate

of appealability on four issues, and with respect to three of the four issues, we affirmed the

district court. United States v. Runyon, 994 F.3d 192 (4th Cir. 2021). On one issue —

whether trial counsel provided ineffective assistance by failing to investigate and present

* While this appeal is taken from an interlocutory order, we conclude that we have jurisdiction under the collateral order doctrine. See, e.g., United States v. Bellille, 962 F.3d 731, 737 (3d. Cir. 2020). 3 USCA4 Appeal: 23-5 Doc: 58 Filed: 09/28/2023 Pg: 4 of 10

mitigating evidence of Runyon’s brain injury and potential mental illness — we concluded

that Runyon had made a colorable claim and that material facts necessary to resolve the

claim were fairly in dispute. Accordingly, we remanded that one issue to the district court

for an evidentiary hearing. Id. at 209.

On remand, the district court appointed counsel for Runyon, including Elizabeth

Peiffer, and, following discovery, began an evidentiary hearing on February 7, 2023, on

the issue remanded. But eight days into the hearing, after 13 witnesses had testified, the

court learned that one of Runyon’s counsel had committed a discovery violation that

undermined Runyon’s claim. The counsel responsible for the violation withdrew from the

case, and Peiffer remained as lead counsel. In May 2023, the court appointed Kathryn Ali

of Ali & Lockwood LLP to serve as co-counsel with Peiffer. The court thereafter continued

the hearing until November 1, 2023.

During the period following the suspension of the hearing, Peiffer explained the

intense and complex activity that she had to take and was taking to serve as Runyon’s lead

counsel. As she stated in her affidavit in support of her motion to withdraw:

Since the suspension of the hearing, I have focused my efforts on identifying and collecting the extensive files of former counsel in various formats, organizing those files in a way to make them effectively accessible, and reviewing tens of thousands of pages for potential relevance to Mr. Runyon’s remanded claim and for potential disclosure to the government. Due to the state of the files received, the process has proven more complicated and time- consuming than initially expected. In addition to working on the discovery issue, I spent time in February, March, and April attempting to locate qualified, available co-counsel.

As noted, Ali was appointed to assist Peiffer as co-counsel in May.

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On June 7, 2023, Peiffer filed a motion to withdraw as Runyon’s counsel, noting

that her mother had been diagnosed with cancer. She represented to the court,

In anticipation of increased demands on my time and attention in providing for my mother’s treatment and care, in addition to the uncertainty due to a diagnosis of this nature, I feel compelled to withdraw from representing Mr. Runyon.

The district court conducted a lengthy hearing on Peiffer’s motion on June 16, 2023, during

which it denied it. The court explained that it was denying the motion because of the need

to have Peiffer, with her experience and institutional memory, continue to represent

Runyon in the interests of justice. The court explained:

There is no indication here that you are not still going to be with the Virginia Capital Resource Center, and if you’re going to be with that Center, even if you can’t at this juncture necessarily take a lead role, Ms. Ali is certainly capable of taking a lead role.

The court continued:

Every case needs some kind of institutional memory in continuity, in other words, an attorney that’s been with the case. . . . [A]t this juncture, this court is not inclined to let the habeas attorney withdraw. I’m very sympathetic to Ms. Peiffer’s family illness. I’m sympathetic to family situations, and she may not for a while be able to take the lead here, but you’ve got very capable co-counsel.

When Ms. Peiffer explained that she did not feel like she would be able to fulfill her ethical

obligation to Runyon, the court responded:

The court is of the opinion you are not fulfilling your obligation to withdraw. There’s probably not a person in this room that has not had a close family member very ill or had a difficult family situation, including the undersigned judge, a very similar family situation, and I’m not saying I’m not sympathetic, but there are still ways to meet your obligations because that’s what a person has had to do at some junctures, and as far as I am concerned, that’s why you have Ms. Ali to take a lead role.

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You would be, in my opinion, violating your duties to Mr. Runyon by not staying in this case because [only] you have the institutional memory.

The court also suggested that other persons have generally helped Ms. Peiffer at the

Capital Resource Center and that they might also provide some assistance. It also noted

that six attorneys from the law firm of Covington & Burling, LLP, had been helping Peiffer,

and it welcomed them to do so.

Shortly after the hearing, the court issued a written order dated June 20, 2023,

confirming its denial of Peiffer’s motion to withdraw. In its order, the court stated that

even though Peiffer’s personal circumstances provided some difficulties, her withdrawal

from the representation of Runyon “would not be in the ‘interests of justice.’” (Quoting

Martel v. Clair, 565 U.S. 648, 652 (2012)). In particular, the court explained again that it

was concerned with the prejudice to Runyon associated with the loss of institutional

knowledge should Peiffer be permitted to withdraw. Peiffer was the only member of the

defense team who had been present throughout the entire discovery process on the

remanded claim. The court also noted prejudice to the United States, as the request came

at the “eleventh hour” in the proceedings. In conclusion, at the hearing and as confirmed

in its order, the court noted that Peiffer could “certainly take a lesser role” — she did not

“have to do all the substantive work” and could proceed on “a limited basis.” But the

interests of justice, nonetheless, required that she remain in the case for “continuity”

purposes.

At the hearing and in its order, the court also expressed its intent not to grant pro

hac vice admission to the six Covington & Burling lawyers, but it did not expressly rule on

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this issue, as such motions for admission had not been filed. It explained that to admit six

attorneys from Covington & Burling would “put the hearing out of control.” Nonetheless,

it noted that the Covington & Burling attorneys were welcome to provide their time pro

bono to assist Peiffer and Ali.

From the June 20, 2023 order, Peiffer filed this appeal. After briefing on appeal,

Peiffer filed a motion, without objection from the government, to have this case decided

on the briefs without oral argument. We grant the motion.

We have carefully reviewed the entire record on this issue and note that the district

court took into account all the relevant circumstances and weighed them, concluding that

even though Peiffer might have to miss some time from work, her more limited

participation was nonetheless necessary to serve the interests of justice, including the

representation of Runyon. The court acknowledged the demands of family illness and,

indeed, expressed sympathy. But it observed that Peiffer had not withdrawn from the

practice of law or from her employment with the Virginia Capital Resource Center. While

it recognized that her role might need to be reduced, it pointed out that co-counsel Ali could

take up the slack, stating, “even if [Peiffer] can’t at this juncture necessarily take a lead

role, Ms. Ali is certainly capable of taking a lead role.” But even with a reduced role,

Peiffer’s presence was necessary; she was the only counsel for Runyon still in the case

from the beginning of the remand proceeding and therefore the only counsel with

institutional knowledge. Discovery had been undertaken, and only Peiffer was fully

involved in its complexities and problems. Moreover, the hearing on remand had already

commenced and was suspended only to resolve an important issue. But it would continue

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on November 1, 2023 — within less than five months — when discovery would be

completed. In short, Peiffer’s motion came in medias res, and if Peiffer were allowed to

withdraw, it would adversely affect the proceedings, the resolution of the issues, and

Runyon’s representation.

While Peiffer expressed fear to the court that she might not be able to discharge her

legal and ethical responsibilities to Runyon, the court responded that Peiffer would “not

[be] fulfilling [her] obligation [to Runyon] to withdraw.” The court also observed that

while it was sympathetic to Peiffer’s family obligations, “there are still ways to meet your

obligations because that’s what a person has to do at some junctures, and . . . that’s why

you have Ms. Ali to take a lead role.” Finally, the court observed the need of resolving the

one habeas issue in a proceeding that “has been going on an inordinate amount of time”

and “continuity has to be there.” After considering all of the relevant factors, the court

concluded:

Ms. Peiffer’s withdrawal would not be in the “interests of justice.” Martel v. Clair, 565 U.S. 648, 652 (2012); see Christeson v. Roper, 574 U.S. 373 (2015). To the contrary, in order to ensure that Petitioner receives adequate representation while maintaining continuity of counsel and the institutional knowledge of the Virginia Capital Representation Resource Center (“VCRRC”), the court finds that it is in the “interests of justice” for Ms. Peiffer to remain as counsel for Petitioner. See id.

(Footnote omitted).

In view of the district court’s careful consideration of all of the factors, we cannot

conclude that it abused its discretion in the circumstances. See Martel, 565 U.S. at 663–

64 (“Because a trial court’s decision on substitution is so fact-specific, it deserves

deference; a reviewing court may overturn it only for an abuse of discretion”).

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On appeal, Peiffer presses the argument that her continued representation of Runyon

violates the Virginia Rules of Professional Conduct because her personal obligations

present a conflict of interest that prevents her from fully discharging her duties to Runyon

and that the conflict requires reversal. In so arguing, however, she presents withdrawal as

an “all-or-nothing” proposition — either she must be able to act as Runyon’s sole and

fulltime counsel of record in the matter or she must recuse herself. But those are not the

only alternatives in the circumstances of this case, and the district court specifically

addressed Peiffer’s concern by noting that she was free to divide up responsibilities with

Ali in the way she sees fit.

Peiffer relies on our decision in United States v. Blackledge, 751 F.3d 188 (4th Cir.

2014), for the proposition that a court abuses its discretion where the record establishes a

conflict of interest, preventing the attorney from mounting an adequate defense. Id. at 194

(noting that “whether the attorney/client conflict was so great that it had resulted in total

lack of communication preventing an adequate defense” is one factor as to whether the

court abused its discretion in denying a motion to withdraw). But that case provides little

support because, as the district court here concluded, Peiffer’s presence is required for

Runyon to present an adequate defense, and any limitations on her time were mitigated by

the fact that Runyon had another attorney of record representing him. Id. at 195 (holding

that a district court abused its discretion where it “failed entirely to inquire about the

internal ethical conflict” and there was evidence that “on the morning of trial . . . [the

attorney and client] had not done any trial preparation” because of a breakdown in

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communications). Moreover, the court observed that Peiffer and Runyon were assisted by

six pro bono attorneys, who also were free to assist.

Peiffer also points to cases from other circuits, contending that they support her

argument that the district court’s order was an abuse of discretion. But those cases dealt

with situations where the attorneys continued representation presented a clear ethical

conflict. Whereas, in this case, the court concluded that Peiffer’s conflict-of-interest

argument could not be maintained in light of the circumstances where she was allowed to

remain in the case on a more limited basis to assist co-counsel.

We note importantly that this is not a case where there is a threat that Runyon will

be inadequately represented as a result of the district court’s order. Runyon has two counsel

of record and six additional counsel assisting pro bono. While it is true that the district

court indicated that it was unlikely to grant the six pro bono attorneys pro hac vice

admission to the case if that were requested, the court nonetheless welcomed their

assistance.

In sum, we do not find that the district court abused its discretion, and therefore we

affirm its order of June 20, 2023, denying Peiffer’s motion to withdraw from her

representation of Runyon.

AFFIRMED