That he has a fool for a client.
That is the gist of this story:
A judicial panel has denied an appeal from a Colbert County death row inmate who represented himself in his capital murder trial, then appealed his conviction based partly on ineffective counsel.
Thinking the opinion would be an interesting discussion of how ineffective assistance of counsel standards apply when the ineffective counsel was the petitioner, I read the opinion. Unfortunately, the court did not reach the merits; the appeal dealt exclusively with procedural issues. The defendant – Thomas Arthur – did not file his state post conviction petition until 5 years after his conviction became final. The limit is two years, so the petition was untimely. That also barred federal habeas review.
The case, though, did raise an interesting issue. Arthur argued that the federal court should excuse the untimely state filing and hear the claim because the reason for the late filing was Arthur’s inability to find a pro-bono attorney. He could not afford counsel, and thus could not file the petition.
The Eleventh Circuit rejected the argument, stating [emphasis added]:
Such an exception is unnecessary, however, because Alabama provides for the appointment of counsel for a petitioner seeking postconviction relief.
An indigent petitioner, who desires the assistance of counsel, may seek appointment of counsel if the petitioner’s postconviction relief petition is not summarily dismissed. Ala. R. Crim. P. 32.7(c).
Similarly, an indigent federal habeas corpus petitioner, seeking relief from a judgment punishable by death, has a mandatory statutory right to appointed counsel from the district court upon filing a motion requesting such appointment. 21 U.S.C. 848(q)(4)(B), 28 U.S.C. §§ 2254(h) and 2261; 18 U.S.C. § 3006A(a)(2)(B); McFarland v. Scott, 512 U.S. 849, 858-59, 114 S. Ct. 2568, 2573-74 (1994).
They may be right to reject the exception, but I’m sceptical about their reasoning. Let’s look a bit closer at these two “similar” provisions. In Alabama, the rule for Rule 32 appointments is:
If the court does not summarily dismiss the petition, and if it appears that the petitioner is indigent or otherwise unable to obtain the assistance of counsel and desires the assistance of counsel, and it further appears that counsel is necessary to assert or protect the rights of the petitioner, the court shall appoint counsel.
So, in addition to being poor, in order to receive appointed counsel, the petitioner must: 1) file the petition; 2) convince the court it is meritorious, i.e. convince the court not to summarily dismiss it, and; 3) convince the court counsel is needed to protect the rights of petitioner.
In federal court, however, counsel is appointed when the petitioner requests it, even if that is before the petition is filed. To the uninitiated, that may not seem like a big deal, but listen to what Scotus said when they considered whether or not habeas appointments should be made like Alabama’s – only after a meritorious petition is filed [emphasis added]:
the right to appointed counsel adheres prior to the filing of a formal, legally sufficient habeas corpus petition . . . .
This interpretation is the only one that gives meaning to the statute as a practical matter. Congress’ provision of a right to counsel under 848(q)(4)(B) reflects a determination that quality legal representation is necessary in capital habeas corpus proceedings in light of “the seriousness of the possible penalty and . . . the unique and complex nature of the litigation.” 848(q)(7).
An attorney’s assistance prior to the filing of a capital defendant’s habeas corpus petition is crucial, because “[t]he complexity of our jurisprudence in this area . . . makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law.” . . .
Habeas corpus petitions must meet heightened pleading requirements, see 28 U.S.C. 2254 Rule 2(c), and comply with this Court’s doctrines of procedural default and waiver, see Coleman v. Thompson, 504 U.S. ___ (1992). Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face, see 28 U.S.C. 2254 Rule 4, and to deny a stay of execution where a habeas petition fails to raise a substantial federal claim, see Barefoot v. Estelle, 463 U.S. 880, 894 (1983).
Moreover, should a defendant’s pro se petition be summarily dismissed, any petition subsequently filed by counsel could be subject to dismissal as an abuse of the writ. See McCleskey v. Zant, 499 U.S. 457, 494 (1991). Requiring an indigent capital petitioner to proceed without counsel in order to obtain counsel thus would expose him to the substantial risk that his habeas claims never would be heard on the merits.
All of Scotus’s reasoning applies with equal force to Alabama. The majority of the work is done in preparing the petition: Factual investigations, reading the record and appeals, research, writing, editing. It is a task easily screwed up by a trained professional, and almost impossible for the average defendant. Never mind the complex laws, how is an incarcerated defendant supposed to conduct an investigation into the facts? Forcing them to go it alone guarantees that most petitions will be dismissed, regardless of the merits. That all but ensures the claims will never be heard, even in federal court.
So, saying, as does the Eleventh Circuit in this case, and Troy King in this editorial, that Alabama provides counsel for Rule 32 petitioners is misleading at best and dishonest at worst.