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Death Row Habeas Petition Doomed by Laziness, Counsel

By William Peacock, Esq. on April 05, 2013 | Last updated on March 21, 2019

Note to Death Row inmates: nag your attorney incessantly - your life may depend on it.

Robert Melson was convicted of three counts of capital murder in 1996. He burned through his direct appeals by 2000 and SCOTUS denied his petition for a writ of certiorari on March 5, 2001.

Start the timer.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), an inmate must file a application for a writ of habeas corpus within one year of the date that the state court judgment becomes final. The clock is tolled while state post-conviction or other collateral review is pending.

In Alabama, counsel is not provided for post-conviction proceedings. However, Melson's old attorney assured him that the Equal Justice Initiative would find him a new attorney. Nine months later, he was blessed by the presence of Ingrid DeFranco, a Colorado attorney not licensed to practice in Alabama. She promised that she'd rock the pro hoc vice, handle his case, etc.

One month before the deadline, Melson wrote to DeFranco for an update. Two days before the deadline, DeFranco filed a Rule 32 petition in state court (which should have tolled the one year habeas limitation). Unfortunately, she botched the state's criminal procedure rules and the petition was dismissed.

She later refiled the Rule 32 petition, and finally got around to that whole pro hoc vice nonsense, but alas, it was far too late to toll the federal timer. The Rule 32 petition was unsuccessful and his attorneys failed to file a timely appeal.

Melson didn't hear about any of this for a few months until he got a letter from the Alabama Attorney General's office, who politely requested to plan his execution date.

It wasn't until late 2004 that another new attorney ended up filing a habeas petition on Melson's behalf - more than two years after the deadline had passed. Appeals and remands later, the case ended up here, in the Eleventh Circuit, to determine if the attorneys' conduct warranted equitable tolling in light of SCOTUS' 2010 Holland v. Floridadecision.

Equitable tolling is warranted when the inmate can show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Did Melson pursue his rights diligently? Many defendants rely upon their attorneys, yet the court felt that his passivity during the first nine months, when he was unrepresented, as well as his inaction during the time between the botched Rule 32 and the habeas filing, amounted to a lack of diligence.

As for the attorney, the phrase "garden variety" negligence was used, (i.e. not "extraordinary" negligence). That's good news for the lawyer. She only mildly screwed up.

What would amount to extraordinary circumstances? Your guess is as good as ours, but apparently not being licensed, not being familiar with local rules of criminal procedure, and missing nearly every deadline is not sufficient.

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