Insufficient Cooties

His name is Paul Howell.  And, as explained by the Honorable Rosemary Barkett, concurring in the judgment (though reluctantly), he done got fucked.  (No, those aren't the judge's words, they're mine. Her words are below.)  

Howell's on death row in Florida.  They almost killed him earlier this year, but he got a stay.  See, the lawyers the state chose to represent him screwed up his case and blew his deadline for seeking relief in federal court.  Burkett gave some detail.

[B]oth his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional.

Now, that's serious shit.  But hey, the Supremes have made it clear that your lawyer acts on your behalf.  And when your lawyer is negligent, well, that's the price you pay for having picked such a dumb shit incompetent as your lawyer.  You should have known better.  

Hold on though.  Howell didn't pick his lawyers.  The state of Florida did.  And since they chose the lawyers, isn't it especially unfair, maybe even unconscionable, to say that Howell should pay with his life for their incompetence?  I mean, we know that Antonin Scalia thinks that fairness and conscience have no place in the criminal justice system or in constitutional law, but he was dissenting when he said those things.

Doesn't matter. The law is clear.  The client suffers for the lawyer's negligence. 

Unless

Unless the lawyer was really, really, really, negligent.  Extra special negligent.  With Cooties.  Which Paul Howell said his lawyer did. (Had? What's the right verb for screwing up with cooties?)  But the court said the Cootie rule wouldn't help him.  It came too late.  He couldn't expect his lawyers to know that the Cootie rule would come along to save them, so they were just grossly incompetent, and that's not enough.  Here's Judge Pryor.

The district court denied Howell’s motion because it concluded that the change in the interpretation of the statute of limitations was not an extraordinary circumstance that would entitle Howell to relief from a final judgment. We affirm.

Burkett, who thinks it sucks, reluctantly agrees.  It's worth quoting her entire opinion.

I agree that, under our precedent, it cannot be said that the district court abused its discretion in dismissing Mr. Howell’s Rule 60(b)(6) motion. However, for the reasons articulated in my concurring opinion in Hutchinson v. Florida, 677 F.3d 1097 (11th Cir. 2012) (Barkett, J., concurring), I continue to believe that it is unjust and inequitable to require death row inmates to suffer the consequences of their attorneys' negligence. Moreover, this is another case where a state’s wholly inadequate system for appointing or funding habeas counsel conspires with a thicket of complex state and federal habeas procedural rules to deny habeas petitioners the opportunity to have their substantive constitutional claims heard by a federal court. What results is a habeas system wherein unqualified and incompetent attorneys regularly fail to ably navigate the procedural waters established by state and federal statutes. This system, which consistently leads to death row inmates being denied an opportunity to present non-frivolous habeas claims, is, in my view, antithetical to the promise of habeas corpus enshrined in the Constitution.

Here, Mr. Howell appears to have colorable claims that both his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional. I continue to believe that it is unconstitutional and immoral for death row inmates to lose a fundamental constitutional right because of their attorney’s errors, especially when they are as egregious as those we deal with here.

Which is exactly right (except maybe for the part about what the precedent says). But, and here's the bottom line, unless the court reverses itself or the Supreme Court steps in, Paul Howell could be the first person in years to have been involuntarily executed without any federal court reviewing his constitutional claims.

Not because he didn't have any.  Not because they weren't maybe worth hearing.  Just because his lawyers fucked up.

Even if you believe in the death penalty, even if you think Howell deserved it, don't you maybe have to wonder if there's something wrong with a system that says

We might not have killed you if your lawyers did their job.  But them's the breaks.

And Justice for All

Here's how an opinion in a capital case decided today by the Sixth Circuit begins.

For more than twenty years, the State of Ohio has displayed a remarkable inability to competently prosecute Joe D’Ambrosio. In 1988, the state botched D’Ambrosio’s trial by violating Brady v. Maryland, 373 U.S. 83 (1963), an error that later came back to bite it in federal habeas review. D’Ambrosio v. Bagley, 527 F.3d 489 (6th Cir. 2008). Then, after D’Ambrosio was issued a conditional writ of habeas corpus, the state misunderstood the district court’s clear, binary order and attempted to simultaneously comply with both of the two alternatives it was given: retry D’Ambrosio within 180 days or vacate his conviction and release him. After failing to complete only the prompt-retrial option, the hapless state marched back to district court and, making D’Ambrosio’s argument for him, conceded that it failed to comply with the conditional writ. Ever since, the state has asserted a variety of confused jurisdictional arguments in both the district court and in this court, and it is now in the position where it may have to let a man it believes to be a murderer go forever free. Whether D’Ambrosio deserves that windfall I cannot say, although, after more than twenty years of bungling his criminal proceedings, surely the state deserves that penalty.

If you didn't know better, you might think the opinion favored the defense.  You'd be wrong.

It's from the opening paragraph of the dissent by Judge Danny Boggs from today's decision in D'Ambrosio v. Bagley.

Put aside the legal merits of the case.  Focus instead on something like fundamental fairness.

Ohio has been trying to kill Joe D'Ambrosio for some 23 years.  It keeps fucking up the effort.  Not by some technical glitch but because in its zeal to ensure that he gets sentenced to die it lies and cheats.  Again and again.  At every opportunity.

He's never had a fair trial.  Never.

There's never been much evidence that, held up to serious scrutiny, suggests he was factually guilty of killing Anthony Klann (or even complicit in the killing).  There's a substantial body of evidence that says he had nothing to do with it.  At a fair trial 23 years ago, with all the evidence the state unconstitutionally and unfairly hid, D'Ambrosio would probably have been found not guilty.  Which would have ended things.

Instead, 23 years later, after decades on death row, after cheating and cheating and lying and lying, after dirty trick after dirty trick (all by the Cuyahoga County prosecutor), a federal judge said that enough is enough and so did a panel of the 6th Circuit, by a 2-1 vote.

I'm not interested here in whether the majority or the dissent has the stronger argument in light of the habeas statutes and rules and the cramped decisions of the courts.

Maybe Danny Boggs has the stronger legal argument.  Maybe not.  But if the law says they should be able to take another shot at trying D'Ambrosio (and why in god's name would we think they'd do it honestly this time?), then Mr. Bumble is right and "the law is a ass."

More to the point, if the law says that, then the law is unconstitutional.

Habeas corpus is supposed to be a check on the government.  When a defendant is convicted or sentenced and his constitutional rights were violated, habeas provides relief.  Except, it doesn't.  Why?  Because, said the Supreme Court in Calderon v. Thomson, it

frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.

Got that?  Enforcing constitutional rights "frustrates" the states' efforts to "honor" them. Which means, of course, that the way to honor the states for trying to honor constitutional rights is to pat them on the back and say "good try" when they state's don't.  It's good for their self-esteem.

And really, we don't actually care if the rights are honored.  We just think it's important to try and honor them.  A for effort.  Results?  Hey, we're talking about criminals here.

Anyway, Calderon was 1998.  That's so last century.

This year, in Harrington v. Richter, the court explained that habeas still has a use. it's there to 

guard against extreme malfunctions in the state criminal justice systems.

Not just the ordinary cock-ups.  We don't care about those.  But when it gets extreme.  When constitutional rights aren't just ignored but are trampled upon, ground into dirt, thrown into the chipper, spit out, and then the chips used as kindling.  Then, maybe, things are bad enough that there's a role for habeas.

Whatever that role, it's not to ensure that constitutional rights are respected.  The Court's made that clear.  And it's certainly not to ensure some sort of fundamental fairness or decency or integrity in the system.  At least, not according to dissenting Boggs, though he's really just channeling Antonin Scalia on that point.

Really.  Here's Scalia fifteen months ago dissenting in Holland v. Florida.

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. Because both the statute and stare decisis foreclose Holland’s claim, I respectfully dissent.

 When Holland came out, I quoted that passage and added this.

Hamlet observed that

Conscience doth make cowards of us all.

For Scalia, at least, conscience is far more dangerous than that.  It's something we might actually follow.  Were we to do that, who knows where it might lead.

And it's not just Scalia dissenting in Holland and Boggs dissenting in D'Ambrosio.  It's the whole shooting match.

Look, I'm a lawyer.  I believe in the Rule of Law.  I think that statutes and rules shouldn't just be acknowledged; they should be obeyed. 

But when the laws are designed (and this is how the habeas statutes and rules are designed) specifically to thwart constitutional rights, and when the judges and justices who interpret the habeas statutes and rules conclude that they should be read as narrowly as possible because Congress doesn't believe in habeas corpus and they don't believe in habeas corpus.  when they all think the idea is to eviscerate habeas corpus because it's designed to protect even guilty people and to protect constitutional rights and they don't really believe in constitutional rights anyhow.

When all that, then the statutes and rule and the judges and justices and legislators and executives make of themselves more than the Consitution.

In the name of strictly construing the law, they reject it.

Due process, a judge I know has said, is violated when you say, "That's not fair."

Like habeas, due process is in the Constitution.

For the judges and justices who think they can write habeas out of the law because they don't approve of it.  For the judges and justices who think that constitutional rights are to be honored but not enforced.  For the judges and justices who believe that due process will always be satisfied because when you get right down to it, no process is due

For all of them.  And for the legislators and executives who buy into the same idea.

You're wrong.

The state knows it can't convict D'Ambrosio in a fair trial, so it's committed to giving him an unfair one.  Danny Boggs seems to think it has a legal right to do that.

The Constitution says otherwise.

 This time, the Constitution won.

You Want Your Lawyer To Be Competent?

Consider, if you will, this guy.

His name is Luis Mariano Martinez, and he's serving consecutive prison terms of 35 years to life in Arizona after he was convicted by a jury of twice having sex with his stepdaughter Lacey.  Although Lacey had previously made statements indicating that Martinez did have sex with her, she had recanted those statements before the trial and denied to the jury that he had sex with her.  The DNA was inconclusive.  The jury found him guilty.

There was much his trial attorney could and should have done but did not.  So deficient was his representation, Martinez says, and so prejudicial was the deficiency, that Martinez was denied his constitutional right to effective assistance of counsel.  Arizona has a mechanism for hearing claims like that.  They must be raised in a post-conviction petition, and notice that there will be such a petition must be filed no more than 30 days after the direct appeal is completed.  The lawyer who represented  Martinez on direct appeal filed the notice way early, got the court to give Martinez 45 days to file his actual petition without the assistance of a lawyer, and then didn't tell Martinez what she had done or what he had to do.  So he didn't file a petition and the court dismissed the post-conviction.

Except, of course, that there was that pesky issue of the violation of Martinez's right to effective assistance of trial counsel.  He got himself a new lawyer and filed a petition within the 30 days after the court of appeals decision.  But it was a second petition, and Arizona says that he needed to raise his claim in the first filing - the one that didn't go anywhere because his lawyer didn't bother to tell him that she had, for no good reason, carefully reduced his time to file something.

Arizona dismissed the petition.  And the federal courts said that if he didn't raise the claim properly under Arizona law, he couldn't pursue it in federal court.

But wait, said Martinez.

I have a right to effective assistance of appellate counsel - including a right to complain about the competence of trial counsel.  My appellate lawyer's incompetence screwed up my post-conviction which was my first chance to complain about my trial lawyer's incompetence.  Come on guys.  Gimme a break.

But see, here's the sticky part.  The Supreme Court said, years ago, that while a criminal defendant has a right under the 6th Amendment to effective assistance of counsel at trial.  And the Supreme Court said that a criminal defendant has a right under the 6th Amendment to effective assistance of counsel at a first round appeal.  And the Supreme Court said the 6th Amendment doesn't do more than that. 

Post-conviction isn't first round appeal. So the fact that his lawyer's incompetence in the first post-conviction deprived him of the chance to complain about trial lawyer's incompetence?  Hey, life's tough.  Get over it.  

Tuesday, the Supreme Court agreed to hear Martinez's appeal.  The case is Martinez v. Ryan and it could make a big difference.

Martinez isn't arguing that everyone has a right to effective assistance of counsel in post-conviction.  It's cruel and unjustifiable that the law doesn't say that, but the Supremes aren't going to revisit that question.  What they might do, though, and what he's arguing that they should do, is carve out an exception when post-conviction is the first time that ineffective assistance of trial counsel can be raised.  That's not just an Arizona problem.

Take Ohio.

Please.

Sorry.

But seriously, take Ohio.

Our post-conviction process is limited and cramped.  But that's the least of it.  For the most of it, we have to look at how it treats people under sentence of death.  

They alone have a statutory right to appointed counsel to help them with their petition.  Folks with any other sentence either have to find a lawyer willing to take on the case or to find someone they can hire. 

But even more, people under sentence of death are to be appointed lawyers who are specially certified by the Supreme Court of Ohio (note that I'm using the formal name here) as competent to accept appointments in post-trial death penalty cases.

Which all sounds pretty good.  Until you read this in the statute.

The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

The judge chooses the lawyer from a list of those specially certified.  But the lawyer fucks up?  if the lawyer is incompetent? Gee, that's too bad.  We never promised you a rose garden.

That's what Martinez could undo.  And that's no small thing.

You'll be shocked to learn that the answer is likely to depend on how Justice Kennedy is feeling.

A Bureaucratic Achievement

His name is Ezell Gilbert.  And he just got royally fucked.

Actually, he got fucked 14 years ago, on March 25, 1997.  What happened on Thursday is that it became official.

Here's the opening sentence in the 11th Circuit's majority opinion in Gilbert v. United States.  It's pretty much all there.

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced.

The very short version.  On that day in March, Gilbert was sentenced to 292 months in prison by a United States District Judge in the Middle District of Florida.  The judge didn't want to give him that much time, but the government convinced him that he had no choice under the sentencing guidelines.*  Gilbert argued then that he was improperly determined to be a career criminal subject to a mandatory enhancement under the guidelines.  The courts rejected that argument.

The thing is that 11 years after he was sentenced, the Supreme Court addressed that very argument (not in his case) and said it was right.  Do all the math again, and it seems that instead of a sentencing range of 292-365 months, Gilbert should have faced a range of 151-188 months.  Oh, and along the way the guidelines stopped being mandatory and became advisory.

Ooops.

So Gilbert went back to court.  The government argued that his original sentence, although wrongly calculated and some 8 1/2 years longer than it should have been, should stand.  Finality and all that.  You just can't fix everything.  Sorry guy.  The district judge agreed.  A panel of the 11th Circuit disagreed, but the government asked the whole court to review the panel's decision which it did.  It said the district court got it right.  Sorry about those 8 1/2 years, but you know, shit happens.

Actually, this particular sort of shit, with variations, happens a lot.

Some poor bastard is arrested illegally or convicted illegally or sentenced illegally or whatever illegally and he ends up having to live with the consequences.  The thing is, it's not usually so brazen.  The other thing is that there's not usually so clear and direct a dissent as this from the Honorable James Clinkscales Hill, Senior Judge (footnotes omitted).

Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.
Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.
Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.
This “Catch-22" approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.
Furthermore, to “seal the deal” on finality, we hold today that even the
savings clause of § 2255 – which appears to permit resort to the Great Writ itself in circumstances such as these – provides no avenue to relief for Gilbert because confinement pursuant to sentencing errors such as his does not offend the Constitution. Rather than acknowledging that Gilbert’s sentence is fundamentally defective and a miscarriage of justice, we hold that the error resulting in an additional eight and one-half years of prison time for Gilbert is a mere technicality, a misapplication of the Guidelines that has no remedy because it is not all that important. Gilbert’s erroneous enhancement as a career offender – demanded by the government at the time – is argued to be mere harmless error now that he has been proven right.
The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

Two weeks ago, I quoted Judge Rawlinson from the 9th Circuit who observed that if the dissenters in Doody v. Ryan had there way,

we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

Now it's Judge Hill in the 11th Circuit.

Who'll be next to remind us that the emperor has no clothes?

Of course, Presidents have the power to remedy this sort of thing.  Obama could commute Ezell Gilbert's sentence tomorrow.  Don't hold your breath.  P.S. Ruckman, Jr. has the numbers at the Pardon Power blog.  (The boldface is Ruckman's.)

The last 12 presidents have, on average, waited 338 days (.9 years) before granting the first commutation of sentence. President Obama, who has yet to grant a single commutation of sentence, has waited 834 days (or 2.3 years). No president has been slower to grant a commutation of sentence save George W. Bush!

Hey, what's another 8 1/2 years among friends?

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*The sentencing guidelines, if you don't know, are essentially just a grid.  Cross the offense level with the criminal history category and you get a range of months from which the judge was to pick the sentence.