Before everyone enjoys Spring Break, we have another great post for you to read. This one comes from Tyler McAnelly and discusses another avenue where a defendant is entitled to assistance of counsel.
In 1999, a jury convicted Mark Christeson of three counts of capital murder. It returned verdicts of death on all three counts and the Missouri Supreme Court affirmed Christeson’s conviction and sentence in 2001, see State v. Christeson, 50 S.W.3d 251 (en banc).
Under the strict 1–year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1), Christeson’s federal habeas petition was due on April 10, 2005. Nine months before this critical deadline, the District Court appointed attorneys Phil Horwitz and Eric Butts to represent Christeson in his federal habeas proceedings. See 18 U.S.C. § 3599(a)(2) (providing for appointment of counsel for state death row inmates). Christeson v. Roper, 135 S. Ct. 891, 892 (2015). After having only met with Christeson for the first time after the deadline passed, Horwitz and Butts filed Christeson’s federal habeus petition on August 5, 2005, 117 days late. Id. Horwitz and Butts asserted that they had miscalculated the AEDPA limitations period. Id. The District Court dismissed the petition as untimely, and the Court of Appeals denied Christeson’s application for a certificate of appealability. Id.
Nearly seven years later, Horwitz and Butts contacted attorneys Jennifer Merrigan and Joseph Perkovich to discuss how to proceed in Christeson’s case. Merrigan and Perkovich immediately noticed a glaring problem – Christeson’s only hope for securing review of the merits of his habeas claims was to file a motion under Fed. R. Civ. P. 60(b) seeking to reopen final judgment on the ground that AEDPA’s statute of limitations should have been equitably tolled. However, Horwitz and Butts could not be expected to file such a motion on Christeson’s behalf, as any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the habeas petition. While initially receptive to Merrigan and Perkovich’s assistance, Horwitz and Butts soon refused to allow outside counsel access to their files. Id. at 893.
Merrigan and Perkovich, working independent of the original defense counsel, filed another motion for substitution of counsel. The District Court denied the motion. Christeson appealed to the Eighth Circuit. On September 19, 2014, while this appeal was still pending before the Eighth Circuit, the Missouri Supreme Court issued a warrant of execution setting October 29, 2014, as Christeson’s execution date. Id.
Merrigan and Perkovich again filed a motion for substitution of counsel on Christeson’s behalf. The District Court again denied the motion, explaining that substitution of “federally-appointed counsel is warranted only when it would serve the interests of justice,” it offered four reasons for its decision. Id. First, it deemed the motion to be untimely because it “was not filed until 2014, and shortly before [Christeson’s] execution date.” Second, it observed that Horwitz and Butts had not “abandoned” Christeson, as they had recently appeared on his behalf in a class-action lawsuit challenging Missouri’s lethal injection protocol. Third, it noted that although Horwitz and Butts had represented Christeson before the Eighth Circuit, that court had not appointed substitute counsel. Fourth and finally, the District Court expressed its belief that granting the motion would set “an untenable precedent” by allowing outside attorneys to seek “’abusive’” delays in capital cases. Christeson again appealed and the Eighth Circuit summarily affirmed the District Court’s order. The US Supreme Court reversed the Eighth Circuit’s judgment on the District Court’s order, remanding to the lower courts. Id.
18 U.S.C. § 3599 “entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings.” Congress has not conferred capital habeas petitioners with the right to counsel of their choice. The statute leaves it to the court to select a properly qualified attorney and contemplates that a court may “replace” appointed counsel with “similarly qualified counsel … upon motion” of the petitioner. § 3599(a)-(e). Id. at 894.
The Court found that a motion for substitution should be granted when it is in the “interests of justice.” See Martel v. Clair, 132 S.Ct. 1276, 1286 (2012). The Court further explained that the factors a court of appeals should consider in determining whether a district court abused its discretion in denying such a motion “include: 1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and, 3) the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client’s responsibility, if any, for that conflict).” Id. The District court’s principal error was its failure to acknowledge Horwitz and Butts’ conflict of interest. Christeson, 135 S.Ct. at 894. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for “serious instances of attorney misconduct.” Holland v. Florida, 560 U.S. 631, 651–652 (2010).
The Court determined that advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Because such argument would threaten their professional reputation and livelihood, counsel cannot reasonably be expected to make such an argument. Christeson, 135 S.Ct. at 894. Indeed, the Court went so far as to say that given a capital defendant’s “statutory right to counsel,” even “in the absence” of § 3599(e) a district court would be compelled “to appoint new counsel if the first lawyer developed a conflict. Id. at 895.
The Court then disposed of the second and third factors relied on by the District Court, that appointed counsel continued to represent Christeson in litigation challenging the means of his execution, and that the Eighth Circuit had not previously substituted counsel. “Whether Horwitz and Butts had currently ‘abandoned’ Christeson is beside the point: Even if they were actively representing him in some matters, their conflict prevented them from representing him in this particular matter. Likewise, it is irrelevant that the Eighth Circuit had not previously sua sponte directed substitution of counsel in the course of denying Christeson’s request for a certificate of appealability and adjudicating his challenge to Missouri’s execution protocol, when the conflict was not evident.” Id.
The Court found that the District Court’s sole reliance on the first and fourth factors was improper because “[t]hese factors alone cannot warrant denial of substitution. Christeson’s first substitution motion, while undoubtedly delayed, was not abusive. It was filed approximately a month after outside counsel became aware of Christeson’s plight and well before the State had set an execution date, and it requested only 90 days to investigate and file a Rule 60(b) motion.” Id.
The Court concluded Christeson should have that opportunity and is entitled to the assistance of substitute counsel while addressing the equitable tolling of the AEDPA’s statute of limitations, and in turn, the Fed. R. Civ. P. Rule 60(b) relief. Christeson, 135 S.Ct. at 896.