Brief in Support of Motion for Appointment of Counsel and for Allowance of Attorney's Fees

    IN THE I'NITED STATES DISTRICT COURT

FF"[18;'ORTHEMIDDLEDISTRICTOFALABAIVIA

,gq J;.1ll t+ nI l0 ''0IoRTHERN 
DrvrsroN

FILED
JUN 5 8841

.HCI\4AS 
C. CAVER, CLENK

DEPUTY CLERK

No. 83-H-579-H

U. S.
I4AGGI8" 'S.

v.

EALON M.

JULIA P.

Llil r ,.l'CCUli'
BOU ElilAl{.ri: ,, 

t-.i..

Petitioner,

LAMBERT, €t d1.,
ResPondents,

WILDER,

Petitioner,

Civil Act,ion

v.

EALON I{. LAMBERT. €t all,
ResPondents.

BRIEF IN
OF

Civil Action No. 83-H-580-N

SUPPORT OF MOTION FOR APPOINTMENT
COUNSEL A}ID FOR ALLOWANCE OF

ATTORNEYIS FEES

The petitioners, I,IAGGIE BOZEMAN and JULIA WILDER, have

moved this Honorable Court for appointment of counsel and' for

allowance of attorneyrs fees, Pursuant to and in accordance

with the provisions of 18 U.S.C. Section 3005A. Petitioners

are proceeding in forma pauperis by order of this court.

Und.er 18 U.S.C. S3OO5A(g) an important recent addition

to the Criminal Justice Act of Lg54 counsel "may be furnished"

in a case arising under 28 U.S.C. 52254 "whenever the United



States magistrate or the court determj-nes that the int'erests

of justice so require and such a person is financially unable

to obtain representation. " Although the Rules Governing 52254

were promulgated after this provision and supersede conflict-

ing statutes, 28 U.S.C. 52072, Habeas RuIe 8(c) expressly

st.ates that the Habeas Rules do not limit the Court's power

to appoint counsel under 18 U.S.C. 53006A at any stage of

the case "if the interest of justice so requires'r'

The legislative history of S3006A(g) and Habeas Rule 8 (c) ,

moreover, make it clear that in "the interests of justice" it

is preferable that counsel be available at every stage of a

habeas corpus proceeding, and that a court'S discretion to

deny counsel is limited. Thus the House Report concerning

Sectj-on 3006A(9) notes that counsel should be provided in cases
L/

involving "serious and complex issues of law and factr"

while the House Report on the Habeas Rules notes, in reference

to RuIe I (c), that counsel should be available from the start
u

where a petition "raises a substantial legal issue." Both

L/ H.R. Rep. No.
in 1970 U.S. Code

2/ H.R. ReP. No.
feprinted in L976

1546, 91st
Cong. and

L471, 94th
U.S. Code

Congi. , 2d Sess. (1970) ,
Ad,min. News 3982, 3993.

Cong.r 2d Sess. (1976),
Cong. & Admin. News 2478,

reprinted

at 4,
248L.

-2-



of these descriptions of cases in which counsel should be

appointed are applicable to the instant proceedings.

The issues in these petitions, including the sufficiency

of evidence under Jackson v. Virginia, 4L3 U.S. 307 (1979) ,

and the constitutional right to notice as required by the

Sixth Amendment, presented complex mixed questions of law and

fact that fit within the congressional descrj.ptions quoted

above of cases in which justice requires the appointment of

counsel from the outset.

Furthermore, although Section 3006A(9) uses the discre-

tiOnary "may" in setting forth the court's power to appoint

counsel, the relevant congressional rePort indicates that

prior precedents in the federal courts that limit the discre-

tion to deny counsel, See, e.g., Gibson v. Jackson, 443 I'. SupP.

239 (M. D. Ga. L977\, vacated and remande@,

578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 u.s. 1119
T7

(1978), are left intact by the provision.- Indeed, in int,er-

preting the provision's "may" langUage, that rePort states

that the court "should" appOint counsel when "necessary to
L/insure a fair hearing. "

1/ H.R. Rep. No.

4/ Id. (emphasis

1545, e!pra,, at 3993 (U.S.C.C.A-N- )

added) .

-3-



In this case, the law is especially clear that counsel

should be appointed in light of the need for petitioners to

file two Motions to Produce in order to obtain a complete

transcript of the state trial. Rule 6 (a) of the Rules

Governing 52254 Cases states that " [i] f necessary for effect-

ive utilization of discovery procedures, counsel shalI be

appointed . . " Moreover, it "ordinarily" is "true" that

counsel is necessary in such cases in order to "assist the

petitioner who seeks to utilize discovery to stave off dismissal

of his petition . or to demonstrate that an evidentiary

hearing is necessary." Wright, Procedure for Habeas Corpus,

77 F.R.D. 22'1,246 (L977); Advisory Committee Note to RuIe 6(a)

of the Rules Governing $2254 Cases.

Further, since a hearing on Petitioners' lilotion For

Sununary Judgment was held during the proceedings, the need for

representation by counsel was especially great. The Ru1es

Governing S2054 Cases make appointment of counsel mandatory if

an evidentiary hearing is conducted. Habeas RuIe 8 (c) states

that " [i] f an evidentiary hearing is required the judge shall

appoint counsel for" indigent petitioners (emphasis added).

The mandatory nature of this provision is clear from its language,

from the Advisory Committee Note accompanying it, and from

the cases interpreting it. 8.g., Wood v. Wainwright, 597 F.2d

IO54 (5th Cir. L979).. Although no testimony was taken, the

hearing enabled counsel to clarify legal and factual questj.ons

-4-



posted by the court, and provided a forum for a ful1 exposi-

tion of the issues on which the Court ruled favorably for

both petitioners. This provision should therefore be con-

sidered as a basis for necessitating the appointment of petitionersl

counsel. As Justice Brennan noted in his concurring opinion

in case v. Nebraska, 381 u.s. 336, 347 (1965), "provision for

counsel to represent prisoners" in habeas corpus cases "enhance(s)

the probability of an effective presentation and a ProPer dis-

position of prisoners' claims." See also, Powell v. A1abama,

287 U.S. 45,68-69 (L932), "The right to be heard would be,

in many cases, of little avail if it did not comPrehend the

right to be heard by counsel. "

counsel for petitioners, therefore, aPply to this court

for appointment Pursuant to 18 U.S.C. 53006A(9). This appli-

cation covers a request for fees and pursuant to 18 U.S.C.

S3006A(d) (1) fu}l recovery of expenses reasonably incurred

through April 25, 1984, for two attorneys, vanzetta Durant

and Lani- Guinier.

There is no provision limiting the number of lawyers who

can be appointed in one case, and more than one is aPproPriate

if it furthers "the interests of justice." 18 U.S.C. S3006A(g).

Appointment of two attorneys for each petitioner furthers "the

interests of justice" Since petitioners were required by

Iocal Rule 2 to retain local counsel in addition to the out-

of-town counsel who was principal attorney in the cases. In

-5-



fact, there were four lawyers who collaborated in repre-

senting petitioners because of the complexity of the lega}

issues and the determined and vigorous contention by re-

spondents. Although two of these lawyers, Siegfried Knopf

and Professor Anthony Amsterdam reviewed documents, researched

the Iaw and conferred extensively with Ms. Durant and Ms.

Guinier, no compensation is claimed for their services.

Affidavits and detailed time logs have been submitted

by Ms. Durant and Ms Guinier. A summary of costs and expenses

reasonably incurred by these attorneys have also been submitted.

Counsel have not been compensated for services which they have

rendered in these cases since L982.

On the basis of the attached affidavits, the complex

nature of the issues involved, and the favorable

disposition reflecting counselsr extensive preparation and

lega1 research, counsel seek ComPensation in excess of the

maximum compensation of $250.00 per attorney in the typical

case.

Section 3006A(d) (2) provides that counsel should each be

compensated for her services on behalf of each petitioner in

each proceeding, for a total of $500.00 per attorney through

April 25, 1984. ilowever, Section 3006A(d) (3) allows com-

pensation "in excess of [the] maximum amount provided in

Section 3OO6A(d) (2) "for extended or comPlex representation"

if the judge "certifies that the amount of the excess

payment is necessary to provide fair comPensation and the

-6-



payment is approved by the chief judge of the circuit.

This provision has been relied uPon to permit reimbursement

far in excess of the $25O.OO maximum. See, e.9., United

states v. Johnson, 549 F. Supp. 78 (D.D.C. 1982 (ceiling

waived and compensation of $7,500.00 certifj-ed as fair);

United States v. Tutino, 4L9 F. SupP. 246 (S.p. N.Y' L976)

(awarding an average of $7.2O8.OO to six attorneys in a felony

trial where the S3OO6A(d) (2) maximum is $1000.00); United

states v. Hunter, 394 F. Supp. 997 (D.D.C. L975) (average of

$2,516.00 to four attorneys in felony trial).

In addition, Section 3006A(d) (1) allows fuII recovery

of "expenses reasonably incurred" by the attorney.

waiver of the $250.00 maximum and an award of fees and

expenses as set forth in the attached affidavits are in the

interests of justice and are essential to fair remuneration.

The legal issues presented in petitioners' Motions For

Sununary Judgment were far from routine, as is clear from the

Iength of the Court's April 13 Memorandum disposing of them.

The lengthy legal memoranda submitted on behalf of petitioners

by their counsel and the March 2 oral argument required

extensive legal research and preparation. Briefing the issues

involved complex and extended repiesentation consistent with

the way those terms have been authoritatively interpreted.

See, United States v. Johnson, supra at 81.

-7-



Finally, excess payment is necessary to provide "fair

compensation. " Neither counsel has been comPensated for their

services. counsel are both experienced lit,igators who

diligently and exhaustively pursued their clients' interest'

Both petitioners were granted relief as a resu1t of counselsl

efforts, despite unfavorable state appellate court rulings'

lbre time, skil1 and effort were expended in these cases than

would normally be required in a typical habeas proceeding' In

view of the fact that both petitioners prevailed in this Court,

it is necessaral and approPriate that counsel be compensated

for providing quality rePresentation to petitioners proceeding

forma paueris.

For these reasons, petitioners request that their Motions

for Appointment of Counsel and for Allowance of Attorneyr s

Fees be granted, Pursuant to 18 U.S.C. S3006A(d) (3) and in

the interests of justice, that counsel be compensated in excess

of the $250.00 maximum, and granted fuII recovery of expenses

reasonablY incurred.
Respectfully submitted,

639 ltartha Street
Montgomery, AI. 35104
(205) 262-7337

-8-



I.ANI GUINIE
99 Hudson Street, 16th Floor
New York, N.Y. 10013
(2L2) 219-1900

Attorneys for Petitioners

Certificate of Service

I hereby certify that a copy of Petitionersr Motion

for Appointment of Counsel and for Allo$rance of Attorney's

Fees, Brief in Support and Affidavits were served upon P.

M. Johnson, c/o Attorney Generalrs Annex, 569 South Lawrence

Street, Montgomery, Alabama 36104, by depositing same,in the

unired srates mail, postage prepaid, on thi{h " $ u^,

of June, L984.

-9-