1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DARREN CORNELIUS STANLEY, Case No. 07-cv-04727-EMC
8 Petitioner, DEATH PENALTY CASE
9 v. ORDER GRANTING PETITIONER’S MOTION TO TEMPORARILY LIFT 10 ROBERT AYERS, et al., STAY OF PROCEEDINGS AND REQUEST TO FILE SECOND 11 Respondents. AMENDED PETITION FOR WRIT OF HABEAS CORPUS, AND DENYING 12 MOTION OF AMICUS CURIAE FOR LEAVE TO FILE AMICUS CURIAE 13 BRIEF 14 Docket Nos. 346, 348
15 16 Before the Court are separate but related motions: Petitioner’s Motion to Temporarily Lift 17 Stay of Proceedings and Request to File Second Amended Petition for Writ of Habeas Corpus 18 (Docket No. 346) and Petitioner’s former counsels’ Motion of Amicus Curiae for Leave to File 19 Amicus Curiae Brief (Docket No. 348). Petitioner’s motion is unopposed by Respondent but is 20 opposed by his former counsel acting as prospective amicus curiae. The motion for leave to file 21 an amicus brief by Petitioner’s former counsel is opposed by both Petitioner and Respondent. 22 Both motions are fully briefed and are ripe for decision. For the following reasons, the Court 23 GRANTS Petitioner’s motion and DENIES the motion for leave to file an amicus curiae brief. 24 At the core of the dispute underlying the two motions is whether a court should resolve 25 strategic differences between a party’s counsel and attorneys with no vested interest in the case 26 other than that they once represented that same party. Some context is necessary to frame the 27 issue. Petitioner’s former counsel were appointed nearly ten years ago, on February 11, 2011. 1 practice, with a substantial focus on litigation of petitioner’s competency. On June 1, 2018, the 2 Court entered an order granting petitioner’s motion to stay these proceedings so that petitioner 3 could return to state court to exhaust some of his federal habeas claims, including, inter alia, parts 4 of Claim 3 of the finalized petition, which alleges that the prosecution committed Batson 5 violations at Petitioner’s trial. See Docket No. 295 at 4-6. Petitioner’s state court exhaustion 6 petition remains pending before the Alameda County Superior Court, which has stayed its 7 consideration of the petition pending the decision of the California Supreme Court in In re Friend, 8 No. S256914. Docket No. 345. On June 18, 2020, Petitioner’s former counsel moved to 9 withdraw, citing changing career circumstances of both appointed attorneys which would render 10 continued representation untenable as well as petitioner’s repeated expressions of dissatisfaction 11 with their representation. Docket No. 335. Counsel specifically recommended that the Court 12 appoint counsel “from one of the federal capital habeas units of the federal public defenders office 13 in order to avoid the dilemma created by the State of California’s lack of funding for capital 14 habeas counsel.” Id. at 8-9. The Court accepted counsels’ motion to withdraw and, following the 15 recommendation of both former counsel and the Selection Board, on October 1, 2020, appointed 16 the Capital Habeas Unit of the Office of the Federal Defender for the Eastern District of California 17 as successor counsel. Docket No. 342. 18 On November 10, through successor counsel, Petitioner filed the instant motion to 19 temporarily lift the stay so that he may file an amended petition. In relevant part, Petitioner’s 20 proposed amended petition would delete some of Claim 3’s factual allegations “because they rely 21 on documents of negligible evidentiary value and of doubtful admissibility.” Docket No. 346 at 2- 22 3. Respondent does not oppose Petitioner’s motion. Docket No. 347 at 2. Although Petitioner’s 23 motion thus requires nothing more than the ordinary application of the liberal pleading amendment 24 standard of Rule 15 of the Federal Rules of Civil Procedure, Petitioner’s former counsel, as 25 prospective amicus curiae, have sought to interpose their own objection to Petitioner’s motion to 26 amend the petition. 27 Petitioner’s former counsel object to the proposed amendment because, in their view, it 1 beyond counsel’s expectations.” Docket No. 348 at 2. In their proposed amicus brief, former 2 counsel refute successor counsels’ assessment of the evidentiary problems motivating the 3 proposed amendment. They maintain that current counsel are wrong to question the value of the 4 relevant documents and that any concern that the relevant documents cannot be authenticated is 5 premature. Docket No. 348 at 7-8. Former counsel complain that they are unable to discern 6 current counsel’s logic in seeking to remove the relevant factual allegations from Claim 3 and they 7 further believe that, with federal proceedings stayed, “now is simply not the time for amending the 8 finalized petition.” Id. at 14. 9 The parties are united in their opposition to the motion for leave to file an amicus brief. 10 Both parties argue that former counsels’ motion does not comport with the customary 11 circumstances in which an appearance by amicus counsel is warranted. Docket No. 349 at 2, 3-4; 12 Docket No. 350 at 2-4. Rather, both parties assert, former counsel are merely attempting to 13 control the direction of the litigation in this case by requesting that the court override a tactical 14 decision of one party’s counsel. See, e.g., Docket No. 350 at 2. Petitioner’s current counsel are 15 pointed in assessing the implications of former counsel’s effort, stating that, if successful, it would 16 cause substantial confusion among the parties and Petitioner regarding “who is charged with 17 making litigation decisions on Mr. Stanley’s behalf” and that, consequently, “undersigned counsel 18 would ultimately have to decide between litigating Claim 3 in a manner they have rejected or 19 moving to withdraw from Petitioner’s case.” Id. at 3. Former counsel did not file a brief in reply 20 to the parties’ opposition briefs. 21 In general, a district court has broad discretion to permit the filing of amicus briefs. 22 Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). However, “[a]n amicus curiae is not a 23 party to litigation.” Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus., State of Montana, 694 24 F.2d 203, 204 (9th Cir. 1982) (citing Clark v. Sandusky, 205 F.2d 915, 917 (7th Cir. 1953). 25 Instead, the “classic role” of amicus curiae is “assisting in a case of general public interest, 26 supplementing the efforts of counsel, and drawing the court’s attention to law that escaped 27 consideration.” Id. Because amicus curiae are not a party, they have “no control over the 1 motions in the case.” NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F.Supp.2d 1061, 2 1068 (N.D. Cal. 2005). 3 Here, the motion of Petitioner’s former counsel plainly exceeds the traditional, limited role 4 of amicus curiae. Rather than supplementing the efforts of counsel of record by drawing the 5 court’s attention to matters of public interest that are overlooked or underrepresented in the 6 parties’ filings, former counsel seek to have the court resolve a tactical dispute between 7 themselves and successor counsel about how best to plead and prove a single claim for habeas 8 corpus relief. Former counsel, no longer representing any party or relevant non-party, thus seek to 9 reassert control over the direction of this litigation after withdrawing and ceding control to new 10 counsel who are seasoned and experienced and whom former counsel recommended.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DARREN CORNELIUS STANLEY, Case No. 07-cv-04727-EMC
8 Petitioner, DEATH PENALTY CASE
9 v. ORDER GRANTING PETITIONER’S MOTION TO TEMPORARILY LIFT 10 ROBERT AYERS, et al., STAY OF PROCEEDINGS AND REQUEST TO FILE SECOND 11 Respondents. AMENDED PETITION FOR WRIT OF HABEAS CORPUS, AND DENYING 12 MOTION OF AMICUS CURIAE FOR LEAVE TO FILE AMICUS CURIAE 13 BRIEF 14 Docket Nos. 346, 348
15 16 Before the Court are separate but related motions: Petitioner’s Motion to Temporarily Lift 17 Stay of Proceedings and Request to File Second Amended Petition for Writ of Habeas Corpus 18 (Docket No. 346) and Petitioner’s former counsels’ Motion of Amicus Curiae for Leave to File 19 Amicus Curiae Brief (Docket No. 348). Petitioner’s motion is unopposed by Respondent but is 20 opposed by his former counsel acting as prospective amicus curiae. The motion for leave to file 21 an amicus brief by Petitioner’s former counsel is opposed by both Petitioner and Respondent. 22 Both motions are fully briefed and are ripe for decision. For the following reasons, the Court 23 GRANTS Petitioner’s motion and DENIES the motion for leave to file an amicus curiae brief. 24 At the core of the dispute underlying the two motions is whether a court should resolve 25 strategic differences between a party’s counsel and attorneys with no vested interest in the case 26 other than that they once represented that same party. Some context is necessary to frame the 27 issue. Petitioner’s former counsel were appointed nearly ten years ago, on February 11, 2011. 1 practice, with a substantial focus on litigation of petitioner’s competency. On June 1, 2018, the 2 Court entered an order granting petitioner’s motion to stay these proceedings so that petitioner 3 could return to state court to exhaust some of his federal habeas claims, including, inter alia, parts 4 of Claim 3 of the finalized petition, which alleges that the prosecution committed Batson 5 violations at Petitioner’s trial. See Docket No. 295 at 4-6. Petitioner’s state court exhaustion 6 petition remains pending before the Alameda County Superior Court, which has stayed its 7 consideration of the petition pending the decision of the California Supreme Court in In re Friend, 8 No. S256914. Docket No. 345. On June 18, 2020, Petitioner’s former counsel moved to 9 withdraw, citing changing career circumstances of both appointed attorneys which would render 10 continued representation untenable as well as petitioner’s repeated expressions of dissatisfaction 11 with their representation. Docket No. 335. Counsel specifically recommended that the Court 12 appoint counsel “from one of the federal capital habeas units of the federal public defenders office 13 in order to avoid the dilemma created by the State of California’s lack of funding for capital 14 habeas counsel.” Id. at 8-9. The Court accepted counsels’ motion to withdraw and, following the 15 recommendation of both former counsel and the Selection Board, on October 1, 2020, appointed 16 the Capital Habeas Unit of the Office of the Federal Defender for the Eastern District of California 17 as successor counsel. Docket No. 342. 18 On November 10, through successor counsel, Petitioner filed the instant motion to 19 temporarily lift the stay so that he may file an amended petition. In relevant part, Petitioner’s 20 proposed amended petition would delete some of Claim 3’s factual allegations “because they rely 21 on documents of negligible evidentiary value and of doubtful admissibility.” Docket No. 346 at 2- 22 3. Respondent does not oppose Petitioner’s motion. Docket No. 347 at 2. Although Petitioner’s 23 motion thus requires nothing more than the ordinary application of the liberal pleading amendment 24 standard of Rule 15 of the Federal Rules of Civil Procedure, Petitioner’s former counsel, as 25 prospective amicus curiae, have sought to interpose their own objection to Petitioner’s motion to 26 amend the petition. 27 Petitioner’s former counsel object to the proposed amendment because, in their view, it 1 beyond counsel’s expectations.” Docket No. 348 at 2. In their proposed amicus brief, former 2 counsel refute successor counsels’ assessment of the evidentiary problems motivating the 3 proposed amendment. They maintain that current counsel are wrong to question the value of the 4 relevant documents and that any concern that the relevant documents cannot be authenticated is 5 premature. Docket No. 348 at 7-8. Former counsel complain that they are unable to discern 6 current counsel’s logic in seeking to remove the relevant factual allegations from Claim 3 and they 7 further believe that, with federal proceedings stayed, “now is simply not the time for amending the 8 finalized petition.” Id. at 14. 9 The parties are united in their opposition to the motion for leave to file an amicus brief. 10 Both parties argue that former counsels’ motion does not comport with the customary 11 circumstances in which an appearance by amicus counsel is warranted. Docket No. 349 at 2, 3-4; 12 Docket No. 350 at 2-4. Rather, both parties assert, former counsel are merely attempting to 13 control the direction of the litigation in this case by requesting that the court override a tactical 14 decision of one party’s counsel. See, e.g., Docket No. 350 at 2. Petitioner’s current counsel are 15 pointed in assessing the implications of former counsel’s effort, stating that, if successful, it would 16 cause substantial confusion among the parties and Petitioner regarding “who is charged with 17 making litigation decisions on Mr. Stanley’s behalf” and that, consequently, “undersigned counsel 18 would ultimately have to decide between litigating Claim 3 in a manner they have rejected or 19 moving to withdraw from Petitioner’s case.” Id. at 3. Former counsel did not file a brief in reply 20 to the parties’ opposition briefs. 21 In general, a district court has broad discretion to permit the filing of amicus briefs. 22 Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). However, “[a]n amicus curiae is not a 23 party to litigation.” Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus., State of Montana, 694 24 F.2d 203, 204 (9th Cir. 1982) (citing Clark v. Sandusky, 205 F.2d 915, 917 (7th Cir. 1953). 25 Instead, the “classic role” of amicus curiae is “assisting in a case of general public interest, 26 supplementing the efforts of counsel, and drawing the court’s attention to law that escaped 27 consideration.” Id. Because amicus curiae are not a party, they have “no control over the 1 motions in the case.” NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F.Supp.2d 1061, 2 1068 (N.D. Cal. 2005). 3 Here, the motion of Petitioner’s former counsel plainly exceeds the traditional, limited role 4 of amicus curiae. Rather than supplementing the efforts of counsel of record by drawing the 5 court’s attention to matters of public interest that are overlooked or underrepresented in the 6 parties’ filings, former counsel seek to have the court resolve a tactical dispute between 7 themselves and successor counsel about how best to plead and prove a single claim for habeas 8 corpus relief. Former counsel, no longer representing any party or relevant non-party, thus seek to 9 reassert control over the direction of this litigation after withdrawing and ceding control to new 10 counsel who are seasoned and experienced and whom former counsel recommended. There is no 11 authority countenancing such an expansive use of a court’s amicus discretion. 12 Turning to Petitioner’s motion to temporarily lift the stay in this matter so that Petitioner 13 may file an amended petition, as mentioned previously, Respondent does not object to the motion. 14 Rule 15(a)(2) of the Federal Rules of Civil Procedure requires that leave to amend a party’s 15 pleading be freely given “when justice so requires.” This standard is to be applied with “extreme 16 liberality” in favor of permitting amendment. United States v. Webb, 655 F.2d 977, 979 (9th Cir. 17 1981). None of the four factors that might ordinarily counsel denying leave to amend—“undue 18 delay, bad faith or dilatory motive, futility of amendment, and prejudice to the opposing party[,]” 19 see id. at 980 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)—appear applicable in this matter. 20 Counsel has evidently reached the professional judgment that they can better prove Claim 3 21 without pleading certain factual allegations dependent on evidentiary materials they find dubious 22 in provenance and probative value. Accordingly, for good cause shown, Petitioner’s motion is due 23 to be granted. 24 For all of the foregoing reasons, the Motion of Amicus Curiae for Leave to File Amicus 25 Curiae Brief (Docket No. 348) is DENIED. Furthermore, Petitioner’s unopposed Motion to 26 Temporarily Lift Stay of Proceedings and Request to File Second Amended Petition for Writ of 27 Habeas Corpus (Docket No. 346) is GRANTED. The stay entered in this matter on June 1, 2018, 1 Habeas Corpus. Petitioner shall file his Second Amended Petition on or before January 27, 2021. 2 The Court will enter an order re-imposing the stay of this matter after the Second Amended 3 Petition is filed. 4 This order disposes of Docket Nos. 346 and 348. 5 6 IT IS SO ORDERED. 7 8 Dated: January 13, 2021 9 10 ______________________________________ EDWARD M. CHEN 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27