concurring and dissenting. The majority opinion is confusing. It first poses the legal issue before this court: “By what authority is the Federal Public Defender representing a defendant in state court?” The majority court posits this issue in an opinion in this appeal, and purports to answer the issue that it asserts exists in four separate capital cases filed and pending in our court.1 This court already addressed this question in Newman v. State, 363 Ark. 199, 211 S.W.3d 543 (2005).
In the Newman case, the trial court ruled that the federal public defenders could not represent Newman in any state proceeding, entering an order to this effect, and also denied the federal attorneys’ motion for reconsideration. Following the trial court’s decision, our court upheld the trial court by granting the State’s motion to dismiss. We also granted Newman’s pro se motion to dissolve this court’s stay of execution. This court filed no written opinion, but I filed a concurring opinion setting out my reasons for upholding the trial court.
In my written opinion, I relied on the case of In re Lindsey, 875 F.2d 1502 (11th Cir. 1989), concluding that the federal public defenders have no standing in state proceedings because no authority supports such action. In fact, the Lindsey court held that 18 U.S.C.A. § 3006A, the federal statute under which counsel may be appointed to represent indigent defendants in federal courts, did not entitle a defendant “to the assistance of a federally-appointed lawyer ... in search of state-court remedies . . . because, while in state court, [the defendant] will be neither ‘seeking relief under’ [28 U.S.C.A. §] 2254 nor pursuing ‘ancillary matters’ as those terms are used in Section 3006.” The court in Lindsey concluded with the following:
We decline to read the words “seeking relief under section ... 2254” so broadly as to encompass state collateral-review proceedings. Although federal habeas petitioners must exhaust all available state remedies as a prerequisite to obtaining federal habeas relief, that requirement is based in principles of federalism that belie the notion that an inmate pursuing state collateral review “is seeking relief under section 2254.” To hold otherwise would be to relegate state-court collateral proceedings to the status of meaningless procedural hurdles placed in the path to a federal writ of habeas corpus.
Lindsey, 875 F.2d at 1508 (emphasis in original). See also House v. Bell, 332 F.3d 997 (6th Cir. 2003); Sterling v. Scott, 57 F.3d 451 (5th Cir. 1995); and Hill v. Lockhart, 992 F.2d 801 (8th Cir. 1993). The federal cases set out above and our Newman decision clearly support the trial court in the Hill appeal presently before us.
Now, I return to the majority opinion, which seems to rely on the same authority set out in my concurring opinion in the Newman case, issued on August 3, 2005. Today’s majority appears particularly persuaded by the Lindsey decision, and it correctly concludes that the federal district court’s appointment of the federal public defenders for indigent capital defendants in federal habeas corpus matters does not carry over to state proceedings. Up to this point, I fully agree with the result reached by the majority. However, the majority opinion then drifts off into a confusing analysis that I do not understand, but as to the portion that I am able to follow, I simply say it is dead wrong.
The majority writes, in relevant part, the following:
We emphasize that should qualified [federal public defender] attorneys wish appointment to represent capital defendants, who are agreeable to that appointment, in matters involving exhaustion of state remedies, we foresee no encumbrance to such appointments. Any intimation that this court is banning the [federal public defender] from state-court representation of capital defendants... is not accurate. However, we also emphasize that we view these exhaustion proceedings as part of the State’s comprehensive Rule 37.5 review, which is contemplated by the Congressional Act in the [Anti-Terrorism and Effective Death Penalty Act].
(Emphasis added.)
Nowhere do I find language in our Rule 37.5 that permits federal district courts to appoint federal public defenders to represent capital defendants in this state’s courts or proceedings. As far as the federal law is concerned, such a defendant shall not apply for and be granted a writ of habeas corpus unless that defendant has exhausted his remedies available in state court. See 28 U.S.C.A. § 2254(b)(1) and (b)(1)(A). Again, the Lindsey case on which the majority and I rely said it best — “To hold otherwise would be to relegate state-court collateral proceedings to the status of meaningless procedural hurdles placed in the path to a federal writ of habeas corpus.” Lindsey, 875 F.2d at 1508.
For the reasons set out above, I concur in part and dissent in part.
See Engram v. State, CR99-928; Hill v. State, CR00-1210; Nance v. State, CR99-365; and Newman v. State, CR03-1257.