*1 expert testimony of vocational and argument regarding his on expanding record, ar- develop Jensen does bear out Jen- failure DOT. The record not whether ALJ failed ask gues that the expert The vocational sen’s contentions. with little were transferable skills that, hypotheti- under the ALJ’s testified to ask adjustment; failed vocational sedentary cal, perform could Jensen jobs were similar to Jensen’s whether new clerk, positions of information semiskilled work; failed evidence previous develop solicitor, clerk. telephone and reservation an advan- showing that Jensen would have be- unexplained There are no conflicts workers; to dif- failed tage over unskilled testimony expert’s tween the vocational previous from skills ferentiate between DOT, identify does not and the and Jensen jobs, in the new work and skills needed any. discrepancies inquire failed to about whole, jobs identified the VE and examining between as a After record job in the DOT. descriptions contained persuaded we that the Commissioner’s are disagree with this characterization of We supported substantial evi- decision find evidence the record and substantial legal and that the correct standards dence supports the ALJ’s decision. were The balance Jensen’s applied. “arguments contrary to the constitute[ ] from the record cited As obvious VE above, carefully led the engage ALJ in an invitation to this regulatory requirements for through the impermissible reweighing of evidence transferability person of skills for for that of judgment substitute our age. also solicited informa- advanced She Commissioner, an must invitation we Jensen tion both from the VE from Barnhart, F.3d decline.” Hackett v. former about the characteristics his (10th Cir.2005). 1168, 1173 The Commis- jobs. job similarity, testi- As for the VE her step-five proving sioner met burden centering skills around fied Jensen’s jobs in the that there are sufficient nation- work, operations, use of business clerical economy hypothetical person al for a equipment as well as basic basic office impairments. is no Jensen’s There revers- acquired were “people” skills skills ible in the ALJ’s decision. error pervious compatible work that would jobs jobs The judgment with the new identified. of the district court is by the VE all were semiskilled identified AFFIRMED. three, meaning
with an SVP of at least un- demanding more than were work and take over one
skilled would including three up
month specific preparation vocational
months Dictionary Occupational learn. See (DOT), II, App.
Titles Vol. C supports
Because substantial evidence
fact that has transferable skills he Jensen positions,
can these he has an apply to HAIN, Petitioner, Allen Scott advantage younger workers. over unskilled Halter, Dikeman v. See Cir.2001). (10th also con- Jensen MULLIN, Warden, Mike Oklahoma
tends, citing Apfel, 196 Haddock v. F.3d Penitentiary McAlester, Cir.1999), State ALJ Respondent; discrepancies did not resolve between the *2 Appellee, America, Steven M. Presson and Robert W.
Jackson, Movants-Appellants. Defender,
Federal Public Western Oklahoma,
District
Amicus Curiae. 05-5039.
No. Appeals,
United Court of States
Tenth Circuit.
Jan.
*
in 28
M.
state death row inmates
U.S.C.
briefs:
Steven
sent
on the
Submitted
by the
Jackson,
are authorized
Jackson
Robert W.
Presson
Norman, OK,
these clients
P.C.,
statute to
Presson,
for Mov-
&
*3
and are entitled
ants-Appellants.
clemency representation.
for
compensation
O’Meilia,
Attor-
E.
David
judg-
holding,
REVERSE the
In so
we
Danielson,
and Kevin
Assistant Unit-
ney,
court
ment of the
below.
Attorney,
of
Northern District
States
ed
Oklahoma, Tulsa, OK, Appellee.
for
I
Otto,
M.
Federal Public Defender
Susan
§a
2254 petition
Hain filed
Scott Allen
Oklahoma,
of
District
for the Western
from a
seeking relief
sentence
death
Braden, Assistant Federal Public
Scott W.
imposed by an Oklahoma state court.
Defender,
Penalty
Death
Federal Habeas
relief,
habeas
appealed
Hain
the denial of
OK,
Division,
City,
filed
Oklahoma
Corpus
Hain v.
this court affirmed.
Gib-
which
for the
an amicus curiae brief
Federal
Cir.2002).
(10th
son,
Jackson and sub- Section precise clear and claim parte mitted ex vouchers to the dis- language, admitting ambiguity of no seeking payment rep- trict court leaving interpretation. their room for Con- clemency gress Hain during resentation of has any post directed that con- “[i]n The court payment, denied viction proceeding under section 2254 ... ruling does not authorize vacate set aside death *4 for funding ... sentence defendant who is or be- appealed ruling sentation. financially Counsel this comes unable to obtain ade- we again quate representation and have decided consider this ... shall be entitled appointment matter en banc. to the of one or more attor- neys furnishing and the of such other ser- II vices in with [paragraph accordance 21 8].” § 848(q)(4)(B).1 U.S.C. Supreme Unambiguously, Court has “stated provision this states that death in- again time and must row presume courts seeking mates says that a it relief under legislature path a statute what 2254—a exclusive to means and means statute what entitled —are ” Germain, appointment says.... attorneys Nat’l Bank v. Conn. and the 249, 253-54, 1146, furnishing 112 117 in para- S.Ct. services described (1992). (statute Thus, graph L.Ed.2d 391 as we always, See 28 U.S.C. 2254 begin with the statutory language applies “person[s] and in custody pursuant effect, court”). if “give every must possible, judgment to the aof State In Walker, turn, clause and word.” Duncan v. 533 8 paragraph provides: “each attor- 167, 174, 150 ney appointed represent L.Ed.2d so shall the defen- (2001). will inquire throughout every We into dant subsequent stage Con gress’s statutory judicial intent if the language proceedings available ... and shall Valdez, v. clear. Edwards 789 F.2d also represent the defendant in such ... (10th Cir.1986). Rather, proceedings for or “[w]hen executive other clemen- may confronted clear unambiguous cy with as be available to the defendant.” duty statutory language, our simply 848(q)(8).2 defendant, § 848(q)(4)(B) attorney 1. The full of 21 text U.S.C. motion of the each so reads: represent appointed shall the defendant any post proceeding throughout every subsequent stage conviction of avail- or section 2254 2255 of Title judicial including proceedings, pretrial able sentence, any vacate aside a or set death trial, sentencing, motions for financially defendant who is or becomes trial, applications appeals, new writ of adequate representation unable to obtain or Supreme certiorari to the Court of Unit- investigative, expert, reasonably or other States, post-conviction ed and all necessary services shall be entitled to the process, together applications stays attorneys of one or more appropriate of execution and other motions furnishing of such other services in ac- procedures, represent and shall also (5), (6), (7), (8), paragraphs cordance with competency proceed- the defendant in such (9). ings proceedings for executive or other clemency may 2. The full text of 21 U.S.C. reads: be available to defen- dant. replaced by qualified similarly Unless coun- upon attorney's sel upon own motion or issue, no other we nonetheless see further than the
One need look
way
ex
logical
to read the statute. As
see that Con
language to
plain
statute’s
Eighth
plain
Circuit: “The
pressed
appointed
that counsel
gress has directed
848(q)
congres
§of
language
evidences
dur
row inmates
represent
state death
indigent
sional intent to insure
“represent
§ 2254
must
‘reasonably necessary’
petitioners receive
throughout every subse
defendant
appointed,
...
services from
judicial proceed
quent stage of available
Lockhart,
v.
counsel.” Hill
compensated
“proceedings for executive
including
ings”
(8th Cir.1993);
see also
clemency may
be available to
or other
Anderson,
Lowery
F.Supp.2d
re
Id3 When
the defendant.”
(S.D.Ind.2001) (“This
finds the
quired
plain language to be control
petitioners
pursue “proceedings
here,
ling
straightfor
with the
consistent
clemency,”
it must
executive
reasoning
persuasive
ward and
have meant
Hill.”)-,
Eighth
Strickler v.
Circuit
given that federal officials have no authori
(E.D.Va.
Greene,
F.Supp.2d
ty
to commute
state court sentence. See
*5
1999) (same).
(President
II,
Const.,
§ 2
art.
has
U.S.
Reprieves and Pardons
grant
“Power to
plain
the
Ignoring
meaning,
the statute’s
States”).
the
against
for
United
Offenses
the
government urges this court to follow
not have the
Because the President does
that,
concluding
Circuit in
Eleventh
ber
power
the
Con
acting under
§
§
848(q)
part
is
of U.S.C.
cause
pardon
stitution to
defendants convicted
primarily
punishments
on
focuses
courts, it
be nonsensical to
laws,
would
“the
drug
for violations of federal
§
suggest
848(q)(8) provides
that
for com
language
preced
in the
contained
sections
pensation
for counsel
state defendants
848(q)(4)(B)
following [§
relates
]
proceedings.
See
federal
criminal
directly
more
to federal
trial
States,
39, 66,
Young v.
24 appeals,
United
than to
re
habeas cases
(1878) (“if
is
King
L.Ed.
there
no offence
lief from
court sentences.”
States, Moore,
the
against
the laws of
United
Cir.
2002)4
basis,
no
Presi
the
pardon
there can be
the
On that
Eleventh Cir
dent.”).
on cuit
that “the word ‘federal’
Acknowledging
split
a circuit
held
proceedings.
imply
applies
Reading
3.
do
the
a
We
not
that
the statute
statute
exclusively
prisoners proceeding
to state
un-
surplusage
the
manner would reduce
Rather,
equal
§
the
der
2254.
statute affords
phrase “proceedings
other
for executive and
clemency representation
§
access to
clemency”
applies
petitioners.
as it
petitioners.
why
scope
no
The dissent offers
reason
clemency representation remained unaltered
vein,
4.
a
that
In similar
dissent asserts
prisoners,
despite its extension to state
but
proceedings
§in
are ex-
described
"unlikely”
argue
Congress
does
that it is
that
clusively
proceedings.
federal
To
reach
encompass
clemency pro-
intended to
conclusion,
heavily
the dissent relies
on the
ceedings
848(q)(4)(B)
because
"was added
fact that
was added to the bill
seemingly
very
late
the bill
in session
Initially,
after
was drafted.
King,
(quoting
without floor debate.” Dissent
representa-
detailed the extent of
1368).
312 F.3d at
It seems that
dissent
provide
tion
counsel was
that,
haste,
arguing
Congress
not
in its
did
Inexplicably,
federal
defendants.
broadening
scope of
realize that
it was
§ 848(q)(4)(B)
dissent concludes
when
clemency representation
represen-
to include
indigent
was added to the bill
to entitle
clemency proceedings. We re-
tation at state
capital petitioners
furnishing
§ 2254
to the
give Congress such
credit. Rath-
fuse to
little
§ 848(q)(8),
services listed in
er,
recognize
Congress
we
understands
848(q)(8) necessarily
proceedings
listed in
exclusively
language
employs and
retained their
federal
the effect of the
that it
character
”
implied
‘proceedings,’
modifier
as it is
counsel
for executive or
“
848(q)(8),
used in
such that
‘proceed-
clemency,
such state
will
=
ings’
federal
that are
receive
only at
Id. (equals
available to the defendant.”
proceedings.
analytical
The
sign
original).5
Eleventh
complication
that,
Cir-
approach
this
deny
noted,
cuit
does
that state death row
federal clemency proceedings are
proceeding
inmates
2254 are enti-
unavailable
to prisoners
seeking relief
furnishing
tled to
of services
accor-
Moreover,
a state sentence.
such a
Rather,
dance with paragraph
ignores
the court
reading
plain
meaning
paragraph
encompass only
statute,
amends
8 to
violates
statutory
the canon of
in-
this
terpretation
Under
amended
requiring
give
us to
effect to
statute, although
version of the
every
statute,
word
and reads the
prisoner
federally-funded
is entitled to
out of
statute
context.6
representatives
(1963),
“that our elected
... know
U.S.
83 S.Ct.
1177 Patterson, 102 456 U.S. S.Ct. in defendants (1982) (internal proceedings? quo- 71 L.Ed.2d omitted). tation marks and citations answering question, In this it is neces sary phrase light examine issue in noted, As Presson Jackson were of the statute aas whole. See Food appointed represent pursuant Hain Admin. v. Drug Brown & Tobacco Williamson § 848(q)(4)(B), provides, perti- which in rp., 120, 132, Co part: nent (2000) (“It L.Ed.2d is a post In any proceeding conviction fundamental canon of statutory construc 28, seeking section 2254 or 2255 of Title tion that the words of a statute must be sentence, or a vacate set aside death in read their context with a view to any is or becomes defendant who finan- place their in the statutory overall cially adequate repre- unable to obtain scheme.”) (internal quotation omit marks .... sentation shall be entitled to the ted). The doing reason for so clear: appointment of one or more provision may ambiguous “[a] in seem (5), ... with paragraphs accordance isolation is often clarified remainder (8) (6), (7), (q) [of subsection ].... statutory of the scheme—because the turn, In 848(q)(4)(B). U.S.C. the ex- terminology same used elsewhere obligated tent to to repre- were clear, context that makes its meaning or §in 848(q)(8): sent Hain was outlined because of the permissible one mean ings produces a replaced by similarly substantive effect that is qualified Unless compatible with the rest the law.” upon attorney’s own motion GMC, Buick Nigh, Koons Pontiac Inc. v. defendant, upon or motion of the each 460, 467, S.Ct. attorney represent so shall (2004) (internal L.Ed.2d 389 quotation throughout every the defendant subse- omitted). marks and citation quent stage judicial pro- available gen- Title 21 pretrial Section addresses ceedings, including erally the federal in a engaging crime of trial, trial, sentencing, motions for new (CCE). criminal continuing enterprise Be- appeals, applications for writ of certiora- imposi- cause the statute for the ri Supreme to the Court of the United penalty tion of the death in certain CCE States, post-conviction and all available cases, 848(e), see 21 U.S.C. contains process, together applications outlining special number subsections stays appropriate of execution other cases, procedures to such be utilized in as and procedures, motions and shall also well as in other federal In- capital cases. compe- defendant among provid- cluded those is a subsection tency proceedings any for the of counsel to clemency may as executive other financially is or “defendant who becomes the defendant. adequate representation unable to obtain 848(q)(8). question posed U.S.C. judg- ... at time either ... before appeal phrase “pro- this is whether the entry judg- ment ... or ... after the of a ceedings for executive or other imposing ment of death but sentence defendant,” may to the be available judg- before execution of psed 848(q)(8), § was intended Con- (ii). 848(q)(4)(A)(I), ment. ...” 21 U.S.C. gress encompass pro- ease, appointed in Once counsel is such a words, ceedings. Congress, did of their out- extent through phrase, pro- use this intend to giv- § 848(q)(8). surprisingly, lined in Not *10 federally-funded § vide represent general counsel to en focus on CCE and 848’s other Further, by in the cases, sarily § federal nature. 848(q)(8) expressly capital
federal
time
are
federally-funded
capital
counsel
to
state
for
they
al-
capital
848(q)(4),
§
defendants
have
federal
counsel under
(i.e.,
trial proceedings
ap-
state trial and
through
ready completed
all of their
their
through
proceedings”
and,
“pretrial
presumably,
the
ex-
pellate proceedings
trial”)
for new
and “motions
“sentencing”
post-conviction
the available state
hausted
convicted,
and,
through the
if
are
Thus,
granting
the
remedies.
absent
post-conviction pro-
the
appellate process,
in
resulting
relief
a new
federal habeas
and,
necessary, any
if
cess
trial,
majority
proceedings
the
of the
sum, the
In
intent
ency proceedings.1
ap-
§
have
expressly
848(q)(8)
in
no
listed
proceedings
all of the
Congress is evident:
capital prisoners.
plicability at all to state
proceed-
in
are federal
848(q)(8)
§
listed
Moreover,
seriously
suggested
it cannot
ings.2
intended,
Congress
that
the event
habe-
capital prisoner obtains federal
view,
my
the
inclusion
trial,
to
granted
new
relief and
statutory
§
in the overall
provide federally-funded
repre-
counsel to
nothing to alter the conclu-
scheme does
ensuing
prisoner
sent
that
in the
for
Congress
intended
sion
trial, appellate,
post-conviction pro-
only
pro-
§ 848(q)(8)
encompass
to
federal
all,
proceedings
those
ceedings,
though
even
ceedings.
post-conviction
After
the
§ 848(q)(8).3
In-
i.e.,
expressly
§
are
listed
848(q)(4)(B),
proceedings
listed
true,
deed,
the
§
if that were
we would have
proceedings,
§ 2254
are neces-
Indeed,
specifically
legislative history,
is dis-
federal court
federal
the
below,
suggests
proceedings
capital
cussed
was
and federal habeas
trials
exclusively
with federal
(including
proceed-
drafted
defen-
both
2254 and
mind,
was
Thus,
dants
not modified follow-
ings).
express
language of
848(q)(4).
the last-minute addition
assumption
allows for
other
Congress
than that
intended
refer
citing
majority suggests,
2. The
Duncan v.
proceedings.
Walker,
2120,
U.S.
121 S.Ct.
(2001),
inappropriate
that it is
L.Ed.2d 251
reasonably
majority
3.I
fail to see how
can
Congress
assume
intended
for
interpret
phrase "executive or other clem-
encompass only
pro-
ency”
clemency proceedings
to include state
however,
ceedings.
majority,
reads too
interpreting the
without also
remainder of
At issue in Duncan was
much into Duncan.
§ 848(q)(8) to include
listed in
corpus petition
"whether a federal habeas
Thus,
view,
proceedings.
my
the ma-
'application
post-conviction
State
or
jority's
848(q)(8) opens
interpretation of
meaning
other collateral
within the
review'
funding
door for federal
2244(d)(2).
of” U.S.C.
state defendants in retrials
subse-
sent
concluding
appli-
S.Ct. 2120. In
"that an
quent
Curiously,
majority
corpus
is not
cation for federal habeas
review
impact
ruling
attempts
downplay
its
application
post-conviction
‘an
State
”
that,
petitioner
suggesting
if a state habeas
review,’
other collateral
2120,
id.
trial,
granted
he
a new
or she "would
would
"[i]t
the Court noted
be anoma-
constitutionally guar-
certainly
almost
receive
lous,
least,
say
to usher in
state],
[from
anteed counsel
and thus
general
federal review under
rubric of
longer
ade-
would no
be 'unable to obtain
statutory provi-
‘other
in a
collateral review'
quate representation’
review,
the statute.”
expressly to
sion that refers
‘State’
however,
ignores,
fact
That
denominating expressly both ‘State’ and
while
hinges
§ 848(q)(4)(B)
peti-
aon
state habeas
parts
‘Federal’
in other
of the
ability
adequate
tioner’s financial
obtain
Id. at
same statute.”
Here,
S.Ct. 2120.
issue,
upon
availability
representation, and not
the statute at
in contrast
through
adequate representation
express
contains no
references to
"State,”
expressly
majority
clearly and
refers to
means. Because the vast
of state
but
*11
odd,
unconstitutional,
potentially
by
re-
governor,
exercised
the
either alone or
(i.e.,
of a
court
the
sult
federal
federal with the
of an advisory
assistance
board.
appointed
Thus,
court that first
counsel
district
See id.
most of
those
§ 848(q)(4)(B)) effectively
to
pursuant
would,
model,
like the federal
be classified
overseeing state proceedings.
as
clemency
“executive”
proceedings. Sec-
ond, Congress, at
the time it drafted
Nor am I convinced that
848(q)(8)’s
§ 848(q)(8),
reasonably
could
have antici-
clemency
to
or other
reference
“executive
pated
availability
the
of “other” avenues
may
to
be available
the defendant” does
for federal
to obtain clemency.
anything to undermine the notion that
example, history
For
establishes that Pres-
Congress
intended
to include
have,
time,
idents
from
time to
sure,
To be
the
to
boards
assist them in exercising their
government
currently
does not
clemency authority. E.g.,
Haase,
J.
Paul
states,
in place,
have
as do
some
board
My Darling
“Oh
Clemency”: Existing or
clemency authority independent
from
Possible Limitations on the Use
generally Margaret
the executive. See
of
Power,
Presidential Pardon
39 Am.Crim.
Love,
Colgate
Collateral Con-
Relief from
1287,
(2002) (noting
L.Rev.
Conviction,
sequences
a Criminal
Table
of
Admin,
“President Ford created a commission
the,
# 1-Models
Pardon
for
called the
Clemency
Presidential
Board
2005),
(July
Power
the U.S.
...
to review
and facilitate
http:/¡www.sentencingproject. org/rights—
those individuals that committed crimes
(noting that
six
restorationltablel.html
War.”);
related
the Vietnam
Executive
currently
place
states
have
indepen-
9814,
(1946) (or-
14,645
11 Fed.Reg.
Order
pardon power).
dent board that exercises
der of
fact,
establishing
President Truman
Seizing upon that
majority
con-
three-member
phrase
cludes that
board
review
“or other
convictions
may
persons under the
Training
be available”
have
in-
Selective
must
been
by
Act of 1940
Congress
tended
to refer to state
Service
and to make rec-
ency
conclusion,
proceedings. That
ommendations
clemency).
how-
executive
ever,
Further,
open
flawed
at least three
is an
question
reasons.
whether
First, in
Congress
most of
states that offer clem-
itself
authority
has
in-
ency
power
dependent
E.g.,
from the President.4
Reed,
petitioners
indigent,
are
habeas
their financial
Court's decision in Schick v.
inability
256,
adequate
to obtain
(1974),
L.Ed.2d 430
means that
would continue
suggests
authority
lacks
apply
they
in the event that
obtain federal
grant clemency
It
defendants.
granted
habeas
and are
relief
new state
II,
upon
true that Article
cl. 1
confers
Further, § 848(q)(8)
trial.
would mandate
grant Reprieves
President
"Power
federally-appointed
counsel continue
against
Pardons
for Offenses
United
petitioners
state habeas
in state
States, except
Impeachment,”
Cases
"replaced by similarly
court until
were
modified,
power
"cannot be
qualified
upon
attorney’s
mo-
own
by
abridged,
Congress.”
or diminished
upon
tion
motion of the defendant....”
Schick,
Signif-
Todd David it, to rely nothing negate does need to on Amnesty: Legislative & er Over Pardon intended for Congress the conclusion that Presidential Authority in Shadow of encompass only pro § federal 848(q)(8) to 1225, L.Rev. Prerogative, 38 Wake Forest as 848(q)(4)(B), which ceedings. Section (2003) court has ever (noting that “no of fed appointment for the noted Congress issue whether [of] ruled on the capital pris counsel to state erally-funded par- to any authority .. exercise has relief, federal habeas “was oners itself’); Hoffstadt, Brian M. power don very late in session and added to the bill Power, Clemency Normalizing the Federal King v. seemingly without floor debate.” (2001) (suggest- Tex. L.Rev. 611-13 (11th Moore, 312 F.3d Cir. clemency Congress can exercise ing that 2002). circumstances, I In of these light authority passing clemency individual that it was agree the Eleventh Circuit with bills). Thus, to it reasonable conclude actually “unlikely” “Congress that intend inclusion of reference Congress’s that counsel, 848(q) at provide ed for section to clemency may 848(q)(8) §in “other expense, to state en federal defendant” was intend- be available in Id. gaged proceedings.” state encompass potential these other ed words, type express absent some indica clemency, rather than of federal forms Congress tion that intended the addition clemency In other proceedings. state § significantly broaden words, to conclude that it is reasonable scope it is in 848(q)(8), unreasonable fashioning language in Congress, in my 848(q)(8) to interpret view us range encompass the broad such a manner. capital a defen- that federal Finally, noteworthy three of might to obtain relief dant utilize order sentence, the four circuits that have reviewed the his her death intended precise question now before us have con- not federal executive include not encom- 848(q)(8) other forms of cluded that does ency proceedings, but also counsel’s clemency might pass federally-appointed be available to capital prisoner of a Lastly, Congress had sentation state defendant. Johnson, Clark v. provide funding See intended to Cir.2002) (con- (5th in state 278 F.3d 462-63 defendants provide cluding 848(q)(8) it could have done so does (e.g., pro- federally-appointed simple and clear manner “and Bell, clemency, ceedings clemency proceedings); or other House for executive (6th Cir.2003) (reaching including proceedings, as F.3d defendant”), respect post- rather to state may be available to the same conclusion vague proceedings); King, than to “other conviction F.3d through reference clemency may (reaching with re- the defen- same conclusion spect clemency proceedings); to state con- dant.” dispute Presi- avenues for federal aside from exec- is still a matter of between the Peterson, Congress.” supra is further bolstered the fact dent and at 1268. utive Moreover, Congress long power 848(q)(8), to "other "has and its reference held the bills,” Hoffstadt, [amnesty] clemency,” apparently pass was drafted before private logical 848(q)(4)(B), supra addition of and that subsec- and it is to conclude that petitioners clemency” 2254 habeas to "other tion's inclusion reference among entitled to the includes this form of relief as those federally-funded thought counsel. well. That there were other Lockhart, tra Hill v. the district ruling denying court’s compen- Cir.1993) (concluding that en- sation.
compasses clemency proceedings, state but
conditioning payment part upon showing provided
that state com- avenues for counsel).
pensation Although (which
Eighth Circuit the majority cites approval) a contrary reached result
Hill, its is not In- reasoning convincing. of carefully parsing
stead language Corey HAMILTON, Duane § 848(q)(8), Eighth Circuit looked to Petitioner-Appellant, language 848(q)(10), which allows 848(q) under receive compensation for nec- “reasonably MULLIN, Warden, Mike Oklahoma essary services,” simply concluded Penitentiary, Respondent- State “ § 848(q) a congressional evidences Appellee. intent indigent peti- insure that state No. 04-5067. ‘reasonably tioners receive com- necessary’ petency ap- services from Appeals, Court of pointed, compensated counsel.” 992 F.2d Tenth Circuit. Further,
at 803. although Eighth Cir- Jan. attempted cuit to narrow the scope its holding decision federal compensa-
tion was only part counsel “as non-frivolous,
aof corpus habeas
proceeding” pro- when “state law
vides no compensation avenue to obtain services,” again
these it so did without
support in language 848(q)(8).
short, the Eighth Circuit effectively per- a legislative
formed function by molding
§ 848(q) to fit what believed a fair was equitable for providing model federal-
ly appointed compensated capital prisoners. reasons,
For these I conclude Con- intend,
gress through did not its enact-
ment of 848(q)(8), provided federally-
funded counsel
defendants in
I therefore conclude that Presson and
Jackson are not to compensation entitled 848(q) per- for the services they
formed in representing Hain in his
clemency proceedings, and would affirm