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United States Court of Appeals,Fifth Circuit.

William SPEER, Petitioner–Appellant v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 13–70001.

Decided: March 30, 2015

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. Craig L. Henry, Esq., Texarkana, TX, for Petitioner–Appellant.

In Martinez v. Ryan1 and Trevino v. Thaler2 the Supreme Court held that a habeas petitioner's procedural default of an ineffective assistance of trial counsel claim could be excused by a federal habeas court if, under certain circumstances, the petitioner received ineffective assistance of counsel during the state collateral review process.3

Now pending before this court is a motion by the petitioner's federal habeas counsel to withdraw as counsel. Counsel argues that because he also represented the petitioner during state habeas proceedings, it would be a conflict of interest for him to now determine whether his state conduct was ineffective. Speer also requests the appointment of new counsel to investigate whether he has any viable claim under the rule established in Martinez and Trevino.

We do not read the Supreme Court's narrowly crafted decisions in Martinez or Trevino to require in this case the appointment of additional federal habeas counsel. Those cases provide only that the federal habeas court is not procedurally barred from hearing a prisoner's ineffective assistance of trial counsel claim if the petitioner's state habeas counsel was constitutionally ineffective.4 They do not create a constitutional right to counsel on collateral review. They only offer remedial relief from procedural bars to the presentation of federal claims attending that defective performance.5

It is said that the petitioner is entitled to counsel on habeas review and that means conflict-free counsel. That there is no such constitutional right to counsel on collateral review aside, the petitioner enjoyed that right. The lawyer here had no conflict in arguing the constitutional claim of ineffective trial counsel to the federal court. It signifies that the petitioner continues to enjoy all the rights Martinez and Trevino afford.

The petitioner's present lawyer is conflicted only in the sense that every lawyer charged to examine the performance of counsel is conflicted in that task when the performance is his own. That has no bearing on counsel's charge to argue the substantive claim of ineffective assistance of trial counsel. We do not read the Supreme Court as requiring a second federally appointed lawyer to plow the same ground ably plowed by the first federally appointed lawyer with no suggestion or hint of any shortcoming on his part. By this manner of reason there is no end to the succession of potential appointments, for each previous lawyer might have been ineffective.

Though we do not interpret Martinez or Trevino as creating the right to new counsel that Speer insists those cases do, our task is not done. 18 U.S.C. § 3599 authorizes federal judges to appoint counsel for indigent federal habeas defendants in capital cases.6 We may also appoint supplemental counsel in federal habeas proceedings.7 We conclude that this authority should be used in the present case in the interest of justice. Under that power, and mindful of the systematic benefits of efficiently resolving all potential claims as early in the habeas process as possible, we direct the appointment of supplemental counsel for the sole purpose of determining whether Speer has additional habeas claims that ought to have been brought.

The congressional grant of appointment power in habeas cases came in response to the challenges petitioners face in the complex and difficult law of the death penalty. This authority enables federal appointments of separate counsel for state and federal habeas, an answer to today's perceived problem. In a case like this one, where present counsel has been actively engaged in this litigation for several years, and moves only late in the process for new counsel, that second appointment in the discretion of the district court may be of counsel who, while independent, counsel, would benefit from the often rich resource of the counsel who has been through the state habeas process and who has prosecuted the federal habeas action with no hint of inability.8 Such action is faithful to Congress's clear intent to promote continuity of representation in federal habeas actions.9

We support this practical answer in service of the larger goals of finality and federalism even though for now its dress is not unlike a solution in search of a problem. We note in passing that we do not know whether the quality of representation by state habeas counsel who have subsequently been appointed as federal habeas counsel will result in such number of claims of ineffective assistance of counsel claims as to justify this belt-and-suspenders treatment, with its attendant problems of coordination and inefficiencies between the two attorneys, trade-offs which do the petitioner no service.10 This empirical question is, in any event, beyond the scope of our decision. Its answer must lie in the United States District Courts, informed by their own experiences.

We express no opinion on whether any new claims would be barred by the Antiterrorism and Effective Death Penalty Act.11 New claims, if any, must be resolved by the district court in the first instance.

Construing present counsel's motion to withdraw as a motion for the appointment of supplemental counsel, we GRANT the motion for the appointment of new supplemental counsel. Because the claims he brings are yet unresolved, we DENY the motion of present counsel to withdraw. We REMAND THIS CASE IN PART to the district court solely to appoint supplemental counsel consistent with this opinion and the requirements of 18 U.S.C. § 3599, and to consider in the first instance whether Speer can establish cause for the procedural default of any ineffective-assistance-of-trial-counsel claims pursuant to Martinez and Trevino that he may raise, and if so, whether those claims merit relief. We retain jurisdiction in the remainder of the case and STAY proceedings pending the conclusion of the district court's review.

I concur in the appointment of additional counsel essentially for the reasons set forth in my concurring opinion in Mendoza v. Stephens, No. 12–70035, –––F.3d ––––(5th Cir.2015) (Owen, J. concurring).