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Case 5:10-cv-00857-FB Document 20 Filed 10/20/11 Page 1 of 6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
TAICHIN PREYOR,
TDCJ No. 999494,
Petitioner,
V.

RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional.
Institutions Division,

Respondent.

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2011

cqIiRT

CIVIL NO. SA-1O-CA-857-FB

ORDER DENYING WITHOUT PREJUDICE MOTION FOR
The matters

OCT 2 0

before this Court

are

APPOINTNT

OF COUNSEL

petitioner's motion for

appointment of counsel, filed August 23, 2011 (docket #19), and

(2)

the status of this case.

Petitioner's previously retained counsel of record, attorney
Brandy Estelle of Beverly Hills,

California,

has filed a motion

requesting this Court appoint her as counsel pursuant to Title 18
U.S.C. § 3599.

This Court has determined petitioner is entitled to

proceed in forma pauperis in this cause. See docket entry no. 17.
Petitioner has filed as an attachment to his motion for appointment
of

counsel

an

affidavit

in

which

he

requests

appointment

attorney Estelle because petitioner has had bad experiences

of

with

attorneys licensed to practice law in Texas and appointed by other
Texas courts.
As noted by the Supreme Court in its opinion in McFarland
Scott, 512 U.S. 849, 855-58

v.

(1994), a state prisoner facing a death

 Case 5:10-cv-00857-FB Document 20 Filed 10/20/11 Page 2 of 6

sentence has a qualified statutory right to the
counsel

connection

in

with

a

federal

habeas

appointment

corpus

proceeding

challenging his criminal conviction and death sentence.
time of the Supreme Court's opinion in McFarland,

right

in

848(q)

question

In March,

(4) (a).

based

was

2006,

upon

Title

21

of

At the

the statutory
U.S.C.

Section

Congress repealed Title 21 U.S.C.

Section 848(q) and simultaneously re-enacted same in substantially
similar form as new Title 18 U.S.C. Section 3599.

The Court will

review petitioner's request for appointment of counsel pursuant to
Section 3599.
Section

3599(b)

authorizes

this

Court

to

appoint

counsel

before judgment if at least one of the attorneys appointed has been
admitted to practice in this Court for not less than five years,
during at least three years of which counsel was engaged in the
actual trial of felony prosecutions.

Section 3599(c) authorizes this Court to appoint counsel after
judgment

if

at

least

one

of

the

attorneys

appointed has

been

admitted to practice in the court of appeals for not less than five
years,

during at least three years of which counsel was engaged in

the actual handling of appeals.

Section 3599(d) authorizes this Court to appoint counsel who
do not meet the five and three-year qualification requirements set

forth above "for good cause" if counsel's "background,
or

experience

would

otherwise

enable

2

him

or

her

to

knowledge,

properly

 Case 5:10-cv-00857-FB Document 20 Filed 10/20/11 Page 3 of 6

represent"

petitioner

the

"with

consideration

due

the

to

seriousness of the possible penalty and to the unique and complex
nature of the litigation."

Attorney Estelle is not admitted to practice before this Court
and does not state she is admitted to practice before any federal

appellate court except the United States Supreme Court to which she
was admitted to practice on April 23, 2008. See Exhibit C, attached
to Petitioner's Motion for Appointment of Counsel, filed August 23,

2011, docket entry no.

While attorney Estelle states she is

19.

currently admitted to practice before the United States District
Court for the Central District of California, she does not indicate
the date she was admitted to practice before that court or that she
has ever undertaken to represent any person in any federal criminal
or habeas corpus proceeding in that court.

Estelle

does

defendants

not

in

any

state

she

federal appellate level.

represented

has

proceeding,

In addition,

either

at

the

federal
federal

attorney
criminal
trial

or

attorney Estelle does not

Furthermore,

state she has ever represented federal habeas corpus petitioners

prior to petitioner herein.
not present

Consequently,

facts showing she

qualifies for appointment in this

cause pursuant to either Section 3599

Moreover,

showing

she

representing

attorney Estelle

has

acquired

capital

attorney Estelle does

(b)

does

specialized

defendants

in

3

or Section 3599

not

state

knowledge

either

trial,

(c)

specific
or

facts

experience

appellate,

or

 Case 5:10-cv-00857-FB Document 20 Filed 10/20/11 Page 4 of 6

habeas corpus proceedings prior to her retention by petitioner's
family to represent petitioner in this case.

claim

not

to

possess

any

specialized

Attorney Estelle does

knowledge

or

experience

regarding Texas criminal procedure or Texas substantive criminal
law.

Attorney

Estelle also

does

not

claim she

taken

has

or

attended any continuing education courses or to have participated
in any other

formal training programs or course designed to train

attorneys to represent capital defendants,

either generally or in

the context of federal habeas corpus proceedings.

Attorney Estelle

does not claim to have otherwise acquired any specialized knowledge

concerning

either

Eighth Amendment,

the

federal

proceedings, or capital litigation generally.
federal

habeas

corpus

petition

attorney

habeas

corpus

This Court notes the

Estelle

filed

on

petitioner's behalf herein (specifically the claims and arguments
set forth at pages 26-33 of Petitioner's First Amended Petition for

Writ of Habeas Corpus, docket #7) contains claims which appear to

disregard or ignore the provisions of Title 28 U.S.C.

§

2254(i).

Therefore, as presented, this Court concludes attorney Estelle has

failed

to

"background,

represent"

demonstrate

she

currently

possesses

sufficient

knowledge, or experience" to enable her to "properly

petitioner

herein

"with

due

consideration

to

the

seriousness of the possible penalty and to the unique and complex
nature of the litigation."
is

Petitioner is entitled to counsel who

familiar with the applicable state and federal procedural and

ri

 Case 5:10-cv-00857-FB Document 20 Filed 10/20/11 Page 5 of 6

substantive law which will govern the disposition of petitioner's
claims.

Attorney Estelle has failed to demonstrate she possesses

such minimal familiarity.

Petitioner remains free to request appointment by this Court
of counsel who does qualify for appointment under Section 3599.

Counsel appointed by this Court to represent petitioner Preyor will

either be admitted to practice before this Court or an appropriate
federal appellate court for the requisite time periods discussed
above or possess

considerable

trial

or

appellate experience in

capital or other complex litigation, at either the state or federal
level.

Usually,

when presented with

a

motion for appointment of

counsel made by an indigent capital habeas petitioner, this Court

appoints

one

of

the

most

experienced members

criminal bar to represent the petitioner.

attorneys likely to be

of

this

At present,

appointed by this Court

are

Court's

all of the

admitted to

practice before this Court and the courts of the State of Texas.
On occasion, this Court has appointed counsel from other states who

were not admitted to practice before this Court to represent death
row inmates pursuing federal habeas relief but only upon a showing

counsel possessed considerable experience or training in capital
litigation.
legal

Typically, such attorneys have been law professors or

practitioners

who

have

considerable

capital litigation.

5

experience

handling

 Case 5:10-cv-00857-FB Document 20 Filed 10/20/11 Page 6 of 6

An indigent federal habeas corpus petitioner does not possess
a

constitutional or statutory right to court-appointed counsel of

his

choice.

See United

States v. Fields,

483

F.3d 313,

350

(5th

Cir. 2007) ("indigent defendants have no right to appointed counsel

of

their

cert. denied,

choice"),

552

1144

U.s.

(2008)

.

If

petitioner wishes this Court to appoint counsel to represent him in
this case, petitioner must either be prepared to accept an attorney

who

is

admitted

appointed
appointment
knowledge,

counsel

practice

or

this

in

or

to

before

identity

cause

an

this

Court

attorney

who possesses

as

willing

sufficient

his

court-

to

accept

background,

experience to satisfy the requirements of Section

3599(d)

Accordingly, IT IS HEREBY ORDERED that petitioner's motion for
appointment

of

counsel,

filed August 23,

2011

(docket #19),

is

DENIED WITHOUT PREJUDICE.
It

is so ORDERED.

SIGNED this

O

day of October, 2011.

FPED BIERY
CHIEF UNITED

7 DISTRICT

STAS

JUDGE