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Texas Defender Service v. United States Department of Justice

United States District Court, District of Columbia

April 9, 2019

TEXAS DEFENDER SERVICE, et al., Plaintiffs,


          REGGIE B. WALTON United States District Judge

         The plaintiffs, Texas Defender Service (“TDS”), John Allen Rubio, Gabriel Paul Hall, and Brian Edward Davis (the “individual plaintiffs”) (collectively, the “plaintiffs”), bring this civil action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06 (2018), against the defendants, the United States Department of Justice (the “Department”) and William Barr, [1] in his official capacity as the Attorney General of the United States (collectively, the “defendants”), seeking “injunctive and other relief to set aside the Final Rule regarding Certification Process for State Capital Counsel, 78 Fed. Reg. 58, 160 (Sept. 23, 2013)” (codified at 28 C.F.R. pt. 26) (the “2013 Regulations”). Complaint and Request for Injunctive Relief (“Compl.”) ¶¶ 1, 3. Currently pending before the Court is the Defendants' Motion to Dismiss (“Defs.' Mot.”).[2] After careful consideration of the parties' submissions, the Court concludes for the reasons set forth below that it must grant the defendants' motion to dismiss.

         I. BACKGROUND

         A. Chapter 154 of the AEDPA and the 2013 Regulations

         The Sixth Amendment to the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. Additionally, federal law guarantees indigent state and federal capital prisoners the right to counsel in federal habeas proceedings. 18 U.S.C. § 3599(a)(2) (2018). However, the Constitution does not guarantee a similar right to counsel in state postconviction proceedings. See Murray v. Giarratano, 492 U.S. 1, 10 (1989) (holding that neither the Eighth Amendment nor the Due Process Clause guarantees indigent capital prisoners the right to counsel in state postconviction proceedings); Pennsylvania v. Finley, 481 U.S. 551, 552 (1987) (noting that “States have no obligation to provide” postconviction relief, “and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well”).

         In an attempt to address this limitation on representation for capital prisoners in state postconviction proceedings, Congress passed Chapter 154, Title 28 of the United States Code (“Chapter 154”), 28 U.S.C. §§ 2261-66 (2018), as part of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which “provides procedural benefits to states that voluntarily appoint counsel to represent indigent capital prisoners during state postconviction proceedings.” Habeas Corpus Res. Ctr. v. U.S. Dep't of Justice, 816 F.3d 1241, 1244 (9th Cir. 2016) (citing 28 U.S.C. §§ 2261-66), cert. denied, 137 S.Ct. 1338 (2017).

If Chapter 154 applies in a federal habeas case, then, among other things, (1) the capital prisoner can secure an automatic stay from execution while his postconviction and federal habeas proceedings are ongoing; (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six month from the date of final judgment of the state courts on direct appeal; and (3) the federal courts must give priority status to the habeas case and resolve it within the time periods specified by Chapter 154.

Id. at 1245 (citations omitted). These procedural benefits of Chapter 154 are available only if “(1) the Attorney General of the United States certifies that a State has established a mechanism for providing counsel in postconviction proceedings as provided in section 2265; and (2) counsel was appointed pursuant to that mechanism, petitioner validly waived counsel, or petitioner was found not to be indigent.” 28 U.S.C. § 2261(b). The Attorney General's certification decisions are subject to de novo review by the District of Columbia Circuit. Id. § 2265(c)(2), (3).

         Chapter 154 also requires the Attorney General to “promulgate regulations to implement the certification procedure, ” id. § 2265(b), which the Attorney General did on September 23, 2013, see Certification Process for State Capital Counsel Systems, Fed. Reg. 58, 160 (Sept. 23, 2013) (codified at 28 C.F.R. pt. 26).

The [2013] Regulations establish a procedure for certifying whether a state's mechanism is adequate for the appointment of professionally competent counsel to represent indigent capital prisoners during state postconviction proceedings. The [2013] Regulations require a state to request certification; the Attorney General must post the state's request on the Internet, solicit public comments, and review such comments during the certification process. If the Attorney General certifies that a state's capital-counsel mechanism conforms to the requirements of Chapter 154 and the [2013] Regulations, she [or he] must also determine the date on which the state established its mechanism. The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively.
The [2013] Regulations also set forth the substantive criteria that a state's capital-counsel mechanism must be certified. Consistent with 28 U.S.C. § 2261(c)-(d), a state's mechanism must require a court of record to appoint counsel to represent an indigent capital prisoner in state postconviction proceedings unless a capital prisoner competently rejected the offer of counsel or was not indeed indigent. If the court appoints counsel, the attorney must not have represented the prisoner at trial, unless the attorney and prisoner expressly agree otherwise. Under the [2013] Regulations, a state's capital-counsel mechanisms must include competency and compensation standards for counsel appointed pursuant to the mechanism. The [2013] Regulations provide two competency benchmarks, as well as a catchall provision for mechanism that otherwise reasonably assure a level of proficiency appropriate for State postconviction litigation in capital cases. Similarly, the [2013] Regulations provide four compensation benchmarks, as well as a catchall provision for mechanisms that are otherwise reasonably designed to ensure the availability for appointment of counsel satisfying the competency standards. A state's mechanism must also authorize payment of the reasonable litigation expenses of appointed counsel.

Habeas Corpus Res. Ctr., 816 F.3d at 1245-46 (citations and internal quotation marks omitted).

         B. Procedural History

         According to the plaintiffs, on March 11, 2013, the State of Texas (“Texas”) submitted a certification request to the United States Attorney General. Compl. ¶ 38. “On November 16, 2017, the Department . . . published a notice in the Federal Register advising the public of Texas's certification request and initiating a sixty-day public comment period.” Id. ¶ 39. “On December 18, 2017, Texas submitted an amended application for certification in the form of a short supplemental letter to the Department . . . advising it of changes that had been made to [Texas's] system for appointing post[]conviction counsel since [the] initial request” for certification in 2013. Id. “On December 27, 2017, the Department . . . published a notice advising the public of Texas's supplemental letter and extending the comment period to February 26, 2018.” Id.

         TDS “is a non-profit organization established in 1995 by experienced Texas death penalty attorneys, ” id. ¶ 10, and on February 23, 2018, TDS and the individual plaintiffs filed their Complaint with this Court, challenging the 2013 Regulations, see id. at 1. “TDS works to improve the quality of representation afforded to those facing a death sentence and to expose and eradicate the systematic flaws plaguing the Texas death penalty” system and “represent[s] death-sentenced Texas prisoners in post[]conviction proceedings in federal court.” Id. As of the date of the filing of Complaint, “TDS [was] participating in the public comment process and [was] [ ] preparing its substantive comment for submission.” Id. ¶ 40. The individual plaintiffs are capital prisoners in Texas, all of whom are “currently in simultaneous direct appeal and state post[]conviction proceedings.” See id. ¶¶ 11-13.

         On June 26, 2018, the defendants filed their motion to dismiss the plaintiffs' Complaint, see Defs.' Mot. at 1, which is the subject of this Memorandum Opinion.


         A. Rule 12(b)(1) Motion to Dismiss

         “Federal [district] courts are courts of limited jurisdiction, ” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt's jurisdiction, '” Morrow v. United States, 723 F.Supp.2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to dismiss a claim if it “lack[s] . . . subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Because “[i]t is to be presumed that a cause lies outside [a federal court's] limited jurisdiction, ” Kokkonen, 511 U.S. at 377, the plaintiff bears the burden of establishing by a preponderance of the evidence that the Court has subject-matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

         In deciding a motion to dismiss for lack of subject-matter jurisdiction, the Court “need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may consider such materials outside the pleadings as it deems appropriate to resolve the questions [of] whether it has jurisdiction [over] the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000); see Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). Additionally, the Court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.'” Am. Nat'l Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, ...

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