Muldowney v. Secretary, Department of Corrections (Sarasota County)

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

DANIEL MULDOWNEY,

Petitioner,

v. Case No. 8:21-cv-2152-CEH-SPF

SECRETARY, DEPARTMENT OF CORRECTIONS,

Respondent. ______________________________/

ORDER

This matter is before the Court on review of the file. The Court finds that because counsel for Petitioner represented Petitioner in his state Rule 3.850 post- conviction proceedings (see Doc. 7-2, Exs. 20, 24), and because the issue of whether counsel rendered ineffective assistance during those state proceedings has been raised (see Doc. 7-2, Doc. 7 at 18; Doc. 9 at 5-6), the circumstances of this case warrant the Court considering sua sponte whether an actual conflict exists sufficient to disqualify counsel from representing Petitioner in this action. See United States v. Diaz-Rosado, 725 F. App’x 847, 854 (11th Cir. 2018) (“Courts are permitted, and sometimes required, to inquire into a potential conflict of interest.”); Gray v. Pearson, 526 Fed Appx. 331, 334 (4th Cir.2013) (“a clear conflict of interest exists in requiring Gray’s [federal habeas] counsel to identify and investigate potential errors that they themselves may have made in failing to uncover ineffectiveness of trial counsel while 1 they represented Gray in his state post-conviction proceedings|.]”); Rhines v. Young, 2015 WL 4651090, at *5 (D.S.D. Aug. 5, 2015), affd, 899 F.3d 482 (8th Cir. 2018) (noting that “the Fourth and Fifth Circuits. . have recognized that a conflict of interest can arise when a petitioner’s initial-review collateral proceeding counsel and federal habeas proceeding counsel are the same.”). Accordingly: 1. Within thirty (30) days of this order, both parties must file supplemental memoranda addressing whether a conflict of interest exists by virtue of counsel’s continued representation of Petitioner in this action and, if so, how it shall be resolved. 2. This action is STAYED pending the filing of the supplemental memoranda and resolution of the conflict-of-interest issue. 3. The Clerk is directed to ADMINISTRATIVELY CLOSE this case. DONE and ORDERED in Tampa, Florida on August 26, 2024.

Chak pias andas No TD pi ell Q_ Charlene Edwards Honeywell United States District Judge

Copy to: Counsel of Record