You Know What They Say About A Man Who Represents Himself,

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.

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3 Comments on “You Know What They Say About A Man Who Represents Himself,”


  1. […] explained here that Alabama does an extremely bad job of providing attorneys to convicts on death row. Basically, […]

  2. Sherrie Stone Says:

    To whom it May Concern,

    I read this article and have some additional information. I know because I am Thomas Arthur’s daughter.

    The State of Alabama made it impossible for my father to find a “voluntary ” attorney. He did not even have a stamp to mail a letter. By the time he found one, it was to late. During this time when an inmate is forced to file theri own petitions, the State of Alabama is supposed to provide a legal law library with updated material. My father had access to a “day” roomwith no updated law books, if any books at all. The State then says the inmates can request these law books. Does anyone know how many books would be needed to research if they even knew what to research? This is a joke. The State of Alabama is sure enough to kill my father, why are they sure enough to allow him to test the DNA evidence at his own expense? They deny a motion for him to have his evidence reheard. They say he must prove innocence first. How can he prove his innocence if they deny him access to the evidence? By the way when he did find an attorney willing to volunter there time, the petition was filed late, so he has never had his FIRST HABEAS CORPUS REVEIEW. hE IS BEING EXECUTED 09-27-07 WITHOUT EVER RECIEVING A FEDERAL OR STATE REVIEW. I am pasting a cover letter to an inofrmation package I have sent to hundreds of media and othe organizations to stop the State from killing another innocent person. If you’d like more documetns, please e-mail me.
    Please signe the petition to Governor Riley to allow the DNA testing and stay this execution until all evidence has been reviewed and tested.
    http://www.PetitionOnline.com/arthur1/petition.html

    Alabama Executing Innocent Man 09-27-2007
    Category: MySpace

    Thomas Arthur / Alabama Executing Innocent Man September 27, 2007
    Category: News and Politics

    Sign Petition To Save My Father From Execution 09-27-2007 Link Below

    Please click on the link and help me save my father from execution on September 27, 2007. Please sign the petition to Alabama Governor Riley. Governor Riley can halt this and demand the DNA evidence be tested and that a jury be allowed to view the evidence that can prove my father’s innocence. A jury has NEVER been allowed to view this evidnec. He is innocent!!! The following are facts in this case.

    LIFE OR DEATH!! STATE OF ALABAMA KILLING INNOCENT MAN SEPTEMBER 27, 2007..:NAMESPACE PREFIX = O />

    PLEASE HELP ME SAVE MY FATHER THOMAS ARTHUR FROM BEING EXECUTED FOR A CRIME HE DID NOT COMMITT !!!!!

    1. NO PHYSICAL EVIDENCE TO LINK HIM TO CRIME. HIS CONVICTION WAS BASED ALMOST EXCLUSIVELY ON THE TESTIMONY OF A CONVICTED MURDERER AND ADMITTED PERJURER.

    2. DNA EVIDENCE AVAILABLE THAT THE STATE OF ALABAMA REFUSES TO RELEASE TO MY FATHER FOR TESTING AT HIS OWN EXPENSE !!!!!

    3. TWO EYEWITNESSES GAVE STATEMENTS THAT SAID HE WAS SOMEWHERE ELSE WHEN CRIME COMIITTED

    4. 3 PREVIOUS TRIALS WHERE JURY WAS NEVER ALLOWED TO VIEW ALL EVIDENCE

    5. SWORN STATEMENTS FROM JURY MEMBERS STATING IF THEY HAD SEEN ALL AVAILABLE EVIDENCE , THEY WOULD HAVE VOTED DIFFERENTLY

    6. THREE OTHER PEOPLE ADMITTED TO TAKING PART IN THE CRIME, TWO OF WHICH WERE FOUND AT THE SCENE OF THE CRIME WITH BLOOD ON THEIR CLOTHES. THEY WERE NEVER TESTED FOR GUN POWDER RESIDUE TO SEE IF THEY FIRED THE WEAPON THAT KILLED THE VICTIM. THE BLOODY SHIRTS HAVE NEVER BEEN RELEASED TO THE DEFENSE FOR DNA TESTING. ONE OF THEM WENT TO PRISON FOR THE MURDER AND WAS RELEASED 10 YEARS LATER AFTER CHANGING HER TESTIMONY FROM SAYING MY FATHER HAD NOTHING TO DO WITH THE MURDER TO THAT SAYING HE WAS RESPONSIBLE. NOT TO MENTION HER DEFENSE ATTORNEY THAT REPRESENTED HER WHEN SHE WAS FOUND GUILTY WAS NOW THE DISTRICT ATTORNEY AND WAS THE ONE THAT OFFERED HER A RELEASE FROM PRISON FOR HER TESTIMONY AGAINST MY FATHER.

    7. MY FATHER IS BEING EXECUTED WITHOUT EVER RECEIVING ANY STATE OR FEDERAL REVIEW OF HIS TRIAL AND DEATH SENTENCE. THIS IS A CONSTITUTIONAL RIGHT EVERY UNITED STATES CITIZEN IS ENTITLED TO.

    8. ONLY ALABAMA REFUSES TO PROVIDE DEATH ROW INMATES THE RIGHT TO AN ATTORNEY TO ASSIST THEM IN POST-CONVICTION PETITIONS. YOU DO NOT HAVE THE RIGHT TO AN ATTORNEY IN ALABAMA IF YOU ARE ON DEATH ROW DURING THE APPEAL PROCESS. YOU ALSO DO NOT HAVE THE RIGHT TO AN UPDATED LAW LIBRARY TO ANY RESEARCH. SO BECAUSE OF A PETITION HE WAS FORCED TO FILE ON HIS OWN WAS FILED LATE, HE HAS BEEN TURNED DOWN FOR THE RIGHT TO THE REVIEWS THAT WILL PROVE HIS INNOCENCE.

    9. APRIL 27, 2007, HE FILED AN MOTION BEFORE THE STATE MOVED TO SET AN EXECUTION DATE, SEEKING THE EVIDENCE COLLECTED BY THE STATE OF ALABAMA FOR DNA TESTING AT HIS OWN EXPENSE, A RAPE KIT, BLOODY CLOTHING, WIG, HAIR SAMPLES. WE COULD HAVE THIS EVIDNECE TESTED BEFORE THE EXECUTION DATE OF SEPTEMBER 27, 2007. THE STATE OF ALABAMA REFUSES TO ALLOW THIS EVIDENCE TO BE TESTED. MOST STATES NOW REQUIRE THE DNA EVIDENCE TO BE TESTED FOR THOSE COVICTED OF CRIMES, BUT NOT ALABAMA.

    10. IN SHORT THE STATE OF ALABAMA WILL EXECUTE MY FATHER BEFORE HE IS PERMITTED TO PRESENT A COURT WITH REASONS WHY HIS CLAIM OF INNOCENCE SHOULD BE HEARD AND BEFORE HE HAS EVER BEEN ALLOWED TO PRESENT EVIDENCE PROVING HIS INNOCENCE. EVERY AMERICAN CITIZEN SHOULD BE CONCERNED ABOUT THIS CONSTITUTIONAL RIGHT BEING DENIED.

    ATTACHED IS THE MOTION MY FATHER FILED TO OPPOSE THE STATE OF ALABAMA’S MOTION TO SET THE EXECUTION DATE. PAY CLOSE ATTENTION TO PAGE 4 OF THE MOTION. ALL OF THE INFORMATION I HAVE LISTED IS IN DOCUMENTED COURT TRANSCRIPTS AND DOCUMENTS OF THE TRIALS THAT HAVE TAKEN PLACE SINCE THIS CRIME WAS COMMITTED. IT IS THERE FOR ANY REPORTER THAT WANTS TO GET THE REAL STORY. MY FATHER IS BEING KILLED FOR A CRIME HE DID NOT COMMITT. HE IS WRONGFULLY BEING PUT TO DEATH BY THE STATE OF ALABAMA.

    WE ARE NOT ASKING FOR LEGAL ASSISTANCE. WE ARE ASKING FOR HELP IN BRINGING THIS INJUSTICE TO THE PUBLIC’S ATTENTION. WE ARE ASKING THAT THE PUBLIC CONTACT GOVERNOR RILEY IN ALABAMA AND DEMAND A NEW TRIAL ALLOWING MY FATHER THE OPPORTUNITY TO SHOW ALL OF THE AVAILABLE EVIDENCE. http://WWW.GOVERNOR.STATE.AL.US Governor Riley –State Capital-600 Dexter Avenue-Montgomery, Al. 36103 Switchboard 334-242-7100-Fax-334-353-0004

    http://www.PetitionOnline.com/arthur1/petition.html

    Most assume he had three trials and must be guilty if he was convicted of the crime three times. However, sworn statements from several members of the jury state “if I had seen ALL of the available evidence, I would not have found him guilty” It does not matter how many trials you have if the State does not allow the defense access to all evidence. If a jury is not allowed to view all evidence including statements from TWO eye witnesses that place my father hundreds of miles from the murder, witnesses that saw someone else that day, fingerprints that did not match him, hair that did not match his, the fact the two people at the crime scene with bloody clothes were never tested to see if they fired a gun, a rape kit results never given to defense (wife of murder victim claimed she was raped by the person that killed her husband), DNA evidence testing now available is not being allowed on multiple items collected by the State of Alabama. PLEASE HELP ME SAVE AN INNOCENT PERSON!!!! IF I CAN BE ALLOWED THE DNA TESTING ON THE ITEMS THE STATE OF ALALBAMA HAS, AND THE ABILITY TO SHOW ALL EVIDENCE IN A NEW TRIAL, I CAN PROVE HE IS INNOCENT. IF THE STATE OF ALABAMA IS SURE ENOUGH TO KILL HIM, WHY NOT LET US DO DNA TESTING ON THE ITEMS AND ALLOW ALL EVIDENCE TO BE SHOWN TO A JURY?

    Sincerely,

    Sherrie Stone SherrieStone4you@aol.com

    Daughter Of:

    Thomas D. Arthur Z427 Death Row 6D-11 N-11A Holman 3700 Atmore Al 36503


  3. We now have a website for Thomas Arthur http://WWW.ThomasArthurFightForLife.com This has case history and links to legal documents surrounding this case. Please act now before it its to late. He is scheduled for execution 09-27-2007 for a crime he did not committ

    Sincerely,

    Sherrie Arthur Stone


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