In a number of cases, the Commonwealth of Pennsylvania has moved to preclude the Federal Community Defender Organization, Eastern District of Pennsylvania ("FCDO") from representing Pennsylvania death row inmates in state post-conviction proceedings where FCDO is attempting to exhaust inmates’ state remedies. According to the Commonwealth, the state court representation by FCDO violates its funding obligations under federal law.
In response to such a motion filed in Isaac Mitchell’s state post-conviction proceeding, the Pennsylvania Supreme Court directed the Court of Common Pleas to hold a hearing to determine whether FCDO used federal grant monies in its state court representation of Mitchell, and, if it made such a finding, to disqualify FCDO from the case. FCDO responded by removing the hearing to federal court under 28 U.S.C. § 1442, the federal officer removal statute. See In re Proceeding in Which the Commonwealth of Pennsylvania Seeks to Compel the Defender Association of Philadelphia to Produce Testimony and Documents and to Bar it From Continuing to Represent Defendant Mitchell in State Court, 2013 WL 4193960 (E.D. Pa. Aug. 15, 2013). The Commonwealth then filed a motion to remand the proceeding back to state court and FCDO filed a motion to dismiss the proceeding. The Commonwealth’s motion was denied and FCDO’s was granted. Id. (In a separate Memorandum, the district court denied a motion by Mitchell to expand the scope of his federally funded representation from FCDO to include his state court claims. Mitchell v. Wetzel, 2013 WL 4194324 (E.D. Pa. Aug. 15, 2013).) See also In re COMMONWEALTH'S MOTION TO APPOINT NEW COUNSEL AGAINST OR DIRECTED TO DEFENDER ASSOCIATION OF PHILADELPHIA, 2013 WL 4501056 (E.D. Pa. Aug. 22, 2013) (denying Commonwealth’s motion to remand to state court and granting FCDO’s motion to dismiss in Francis Harris’ case).
In the case of Anthony Dick, also involving state post-conviction proceedings, the Commonwealth requested the state court conduct a hearing to determine whether FCDO should be removed as Dick's counsel in the post-conviction proceeding. Again, FCDO removed the Commonwealth's hearing request to federal district court, the Commonwealth moved to remand the hearing request to the state court and FCDO moved to dismiss the hearing request. In re COMMONWEALTH'S REQUEST FOR RELIEF AGAINST OR DIRECTED TO DEFENDER ASSOCIATION OF PHILADELPHIA, 2013 WL 4458885 (M.D. Pa. Aug. 16, 2013). Finding that FCDO failed to satisfy its burden to establish the existence of federal jurisdiction under the federal officer removal statute, the Commonwealth’s remand motion was granted and FCDO’s dismissal motion was denied as moot. Id.; see also In re COMMONWEALTH'S MOTION TO APPOINT COUNSEL AGAINST OR DIRECTED TO DEFENDER ASSOCIATION OF PHILADELPHIA, 2013 WL 4458848 (M.D. Pa. Aug. 16, 2013) (same result in Kevin Dowling’s case); In Re: Proceedings Before the Court of Common Pleas of Monroe County, Pa. to Determine Propriety of State Court Representation by Defender Association of Philadelphia, 2013 WL 4459005 (M.D. Pa. Aug. 16, 2013) (same result in Manuel Sepulveda’s case).