Paul Howell, AEDPA's Habeas Time Limits, and SCOTUS's Mistake
"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." (Judge Rosemary Barkett)
In short: Paul Howell got screwed. As we related earlier this week, Howell was convicted of killing a state trooper using a pipe bomb that was intended for a witness in an unrelated case. He's probably not a nice guy. He is, however, guaranteed a fair trial and a habeas appeal. Arguably, he received neither.
And thanks to the intricacies of habeas procedure, he won't, unless the Supreme Court steps in.
We covered the vagaries of equitable tolling earlier this week. The Supreme Court's "rule," from Holland v. Florida, is that tolling of the one-year time limit for habeas petitions is available where an inmate's attorney was really, really (grossly) negligent, as opposed to "garden variety" negligent.
Howell had two attorneys, both state-appointed. One, who is now a judge, allegedly fabricated death threats to get out of Howell's drug trial, then somehow convinced the Florida trial court to appoint him as defense counsel in the murder trial. Conflict? What conflict?
His habeas counsel not only botched the deadline, but she didn't even contact him until the deadline passed.
The latter circumstance would seem to fall under 11th Circuit precedent as "garden variety," but the two together? Maybe, just maybe, that meets the vague Howell standard.
Unfortunately, he diligently requested equitable tolling in 2005, before Holland was decided in 2008.
Rule 60(b)? Nope.
Rule 60(b) allows the court to set aside earlier judgments or orders in extremely rare circumstances that justify relief. Obviously, finality of judgments is a priority in our system, so it takes a pretty hefty burden to warrant Rule 60(b) relief.
The Eleventh Circuit held that this isn't one of those cases, per precedent. In Gonzalez v. Crosby, the Supreme Court held that a change in interpretation of AEDPA time limits isn't an exceptional circumstance warranting Rule 60(b) relief.
Was this a change in interpretation of a statute of limitations? It sounds similar. The case addressed in Gonzalez was Artuz v. Bennett, which itself dealt with tolling the federal clock for defective state habeas petitions. This is equitable tolling of the federal clock. Even Judge Barkett, who seems to dissent from every death penalty case, agreed that Gonzalez controlled.
ABA Amicus: Shift in Law
The ABA argues in its amicus brief that the court "failed to appreciate the magnitude of the change in the law that [the Supreme Court] mandated in Holland: Holland did not simply calibrate a cog in AEDPA's timing mechanisms; it provided a safety valve for those extraordinary cases when the mechanisms malfunction."
Instead, the ABA argues, the Court replaced the Eleventh Circuit's rigid equitable tolling rules with a "case-by-case, fact-sensitive analysis." And Artuz dealt with a timing rule. Holland dealt with equity and "mitigating the 'evils of archaic rigidity' that can sometimes from from 'more absolute legal rules.'"
It's an interesting argument, but we're not so sure about it. Both Artuz and Holland dealt with clarifying when AEDPA's limitation is tolled. The Eleventh Circuit, unfortunately, may be correct under controlling precedent.
It would be nice, however, to the Supreme Court step in and fix their big mistake in Holland. Since that decision, lower courts have dealt with the exact confusion that Justice Alito predicted, when he quipped that the "gross negligence" standard was "ordinary negligence with a vituperative epithet added."
Inmates, with state-appointed counsel, are losing their habeas rights (and in this case, his fair trial right) due to "incompetent, ineffective, and deeply unprofessional" conduct and vague time limits that sometimes are tolled, sometimes are not, and all too often, are simply missed.
- Howell v. Florida (Eleventh Circuit Court of Appeals)
- Batson Violation Saves Accused from Death Row - For Now (FindLaw's Eleventh Circuit Blog)
- 11th Circuit Won't Recuse From Murder Case of One of Their Own (FindLaw's Eleventh Circuit Blog)