Free Motion to Appoint Counsel - District Court of California - California

Case 3:08-cv-00853-WHA

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Filed 02/20/2008

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Michael S. Romano Attorney at Law 523 Octavia Street San Francisco, CA 94102 Telephone: (415) 431-3472 Attorney for Petitioner TRAVELL BROWN

IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TRAVELL BROWN, Petitioner, vs. ROBERT HOREL, Respondent. ) ) ) ) ) ) ) ) ) ) No. 08-CV-00853 (WHA) MOTION FOR APPOINTMENT OF COUNSEL AND SUPPORTING DECLARATION; PROPOSED ORDER

Petitioner Travell Brown hereby moves for appointment of counsel to represent him in all proceedings relating to his petition for a writ of habeas corpus filed on February 7, 2008, pursuant to 28 U.S.C. § 2254. In support of that motion, Michael S. Romano, Esq., declares under penalty of perjury that: (1) I am an attorney licensed to practice before this Court. I have represented Travell Brown throughout the state appellate court proceedings in this case. Due to Mr. Brown's indigence, I was appointed to represent him in the State Court of Appeal and before the State Supreme Court. I am therefore uniquely qualified to represent him in the proceedings in this Court. I am currently awaiting return-receipt of a declaration from Mr. Brown asserting his lack of financial resources. (2) I am an experienced criminal defense attorney who has appeared before this court and the Ninth Circuit on habeas matters. I teach advanced criminal procedure and federal 1

Case 3:08-cv-00853-WHA

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Filed 02/20/2008

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habeas practice at Stanford Law School. Due to the financial constraints of my private practice, I am unable to represent Mr. Brown pro bono. (3) Under 18 U.S.C. § 3006A, it is within the discretion of this Court to appoint counsel for an indigent petitioner if (1) the interests of justice so require, (2) such a person is financially unable to obtain representation, and (3) such person is seeking relief under 28 U.S.C. section 2254. As the Ninth Circuit has held, counsel should be appointed where "fundamental fairness" requires it. Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867 (1986). (4) This case presents complex federal constitutional issues that are most efficiently addressed by counsel rather than Petitioner in propia persona. As demonstrated by this Court's Order to Show Cause issued February 20, 2008, Mr. Brown's habeas claims are not frivolous and require professional legal briefing. (5) Mr. Brown's habeas petition challenges the validity of his state court conviction on several complex constitutional theories. The state Court of Appeal affirmed Mr. Brown's conviction, reasoning that many of the alleged errors in his trial--including the denial of an unopposed severance motion, a shackling order based on zero evidence of recent disrupting or unruly behavior, and unquestionably mistaken jury instructions--were harmless. (See Excerpts of State Court Record at Tab E.) (6) The issues raised in Mr. Brown's habeas petition are both substantial and complex. Mr. Brown's conviction and sentence may not be significant compared with other cases before this Court, but his prosecution and trial, which took place while Mr. Brown was incarcerated at Pelican Bay State Prison, was slap-dash and riddled with undeniable errors. Furthermore, Mr. Brown's habeas petition is not a mere repetition of his state court claims. The issues before this Court, of course, concern whether the state courts unreasonably construed and/or applied clearly established United States Supreme Court precedent. Mr. Brown has no legal training. I do not believe he has completed high school. He is completely unable to litigate this case on his own.

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(7) Therefore, because this case involves significant, complex constitutional issues, it comes within the requirements of 18 U.S.C. § 30006A, and I hereby move this Court to appoint me as counsel to represent petitioner in this action in the interest of justice, fundamental fairness, and judicial economy. (8) Finally, I respectfully request that the Court make its appointment nunc pro tunc to November 15, 2006, the date the California Supreme Court denied Mr. Brown's petition for review, to permit compensation for work undertaken to date on Mr. Brown's federal habeas petition. Executed this 20th day of February, 2008, at San Francisco, California.

(SIGNED) MICHAEL S. ROMANO Attorney for Petitioner Travell Brown

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: ___________ _______________________ United States District Judge William H. Alsup TRAVELL BROWN, Petitioner, vs. ROBERT HOREL, Respondent. ) ) ) ) ) ) ) ) ) ) No. No. 08-cv-00853 (WHA) (PROPOSED) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

GOOD CAUSE APPEARING THEREFORE, Michael S. Romano is hereby appointed counsel for petitioner, Travell Brown. Appointment in this matter is made nunc pro tunc to November 15, 2006, IT IS SO ORDERED.