928 F.3d 1127

WATFORD, Circuit Judge, dissenting:
I agree with my colleagues that the scope of Glen Niemy's federal appointment under 18 U.S.C. § 3599 extends to state clemency proceedings, and that the scope of his representation is unaffected by California's provision of counsel for clemency purposes. Niemy's request for appointment of co-counsel, however, triggers a new inquiry under § 3599(a)(2). That provision authorizes a federal court to appoint "one or more attorneys" to represent a death-row inmate in state clemency proceedings, but only if the inmate can show that he is "financially unable to obtain adequate representation" on his own. An inmate cannot make that showing if the State itself, free of charge, has appointed counsel capable of providing adequate representation.
If the California Supreme Court were to appoint the Arizona Federal Public Defender's Office to represent Richard Samayoa in state clemency proceedings free of charge, he would not be able to show that he is financially unable to obtain adequate representation on his own. That is why the district court sensibly concluded that Niemy must make his request for the appointment of co-counsel to the California Supreme Court in the first instance. If that court for whatever reason declines Niemy's request, the district court should then appoint co-counsel under § 3599(a)(2), as Niemy has persuasively shown why Samayoa needs the assistance of co-counsel to receive adequate representation in his state clemency proceedings.
My colleagues appear to read subsection (a)(2) as requiring Samayoa to show only that he is indigent in order to be entitled to the appointment of co-counsel. That reading does make some sense in light of the statute's reference to the inmate's being "financially" unable to obtain adequate representation. But in my view the majority's reading cannot be squared with the Supreme Court's decision in Harbison v. Bell , 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009), where the Court declared that an inmate's state-furnished representation may indeed render him ineligible for appointment of counsel under § 3599, notwithstanding his indigency. Id. at 189, 129 S.Ct. 1481.

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