A ruling against a death row inmate claiming huge mistakes by his lawyers may launch another round of the back-and-forth litigation between the U.S. Supreme Court and Atlanta’s federal appeals court.
Last week, a panel of the U.S. Court of Appeals for the Eleventh Circuit rejected the claims by Alabama death row prisoner Ronald Bert Smith. He had argued that he shouldn’t be held responsible for missing a key deadline because one of his lawyers was a drug addict and the other didn’t file the paperwork allowing him to appear in an Alabama court.
Smith argued that those facts put him in the same category as another Alabama death row inmate, Cory Maples, who last year won at the Supreme Court. Maples had missed a deadline after his lawyers at Sullivan & Cromwell in New York left the firm and the firm mail room returned envelopes from the Alabama court to the clerk’s office without anyone seeing them.
Over the dissent of Judge Rosemary Barkett, the Eleventh Circuit ruled against Maples, but the Supreme Court reversed by a vote of 7-2, saying Maples’ lawyers had abandoned him so he shouldn’t be held to their mistakes.
Barkett again was the dissenter in the Smith case, in which two judges on Dec. 28 rejected Smith’s efforts to be excused for the missed deadline.
Alabama Assistant Attorney General J. Clayton Crenshaw said in a statement issued via an office spokeswoman that the two cases were very different.
“As the Eleventh Circuit explained, Smith had lawyers,” said Crenshaw. “Maples convinced the Supreme Court that his lawyers abandoned him, but the unambiguous record shows that this did not happen here.”
Federal Defender Program Executive Director Christine Freeman, whose Montgomery office has been representing Smith on his federal habeas corpus petition, said she’ll ask the full Eleventh Circuit to look at the case. “We’re still hopeful … that the Eleventh Circuit will apply Maples as it should have been applied,” she said.
Smith was convicted for the 1994 murder of convenience store clerk Casey Wilson during what the Eleventh Circuit panel’s opinion describes as an armed robbery.
According to Freeman, Smith believed Wilson was romantically involved with his girlfriend, but that defense was inadequately presented by trial counsel. The Alabama jury recommended a life sentence by a vote of 7-5, but the trial judge decided to sentence Smith to death, a jury override Freeman explained is permissible under Alabama law. Smith appealed and lost, with the U.S. Supreme Court denying his petition for writ of certiorari on Oct. 2, 2000.
Having lost his direct appeals, Smith sought new counsel to handle his state and federal habeas proceedings. According to the Eleventh Circuit panel’s decision, an attorney with the private Equal Justice Initiative in Montgomery wrote to Smith in March 2011 to say the organization was looking for an attorney to represent him. In the meantime, the attorney said, law students working with the group had drafted a state habeas petition for him so he wouldn’t miss any deadlines.
Under the federal Antiterrorism and Effective Death Penalty Act, the state habeas petition had to be filed by Oct. 2, 2001, in order to stop the clock on the one -year limit Smith had for later filing a federal habeas petition.
In July 2001, the Equal Justice Initiative wrote Smith to tell him that a lawyer in Tennessee, William Massey, had agreed to take his case. Massey wasn’t admitted to practice in Alabama, but an attorney who was, C. Wade Johnson, agreed to act as local counsel. On Sept. 27, 2001, a habeas petition bearing the names of both lawyers was filed in state court for Smith.
The problem for Smith is that the filing included neither the filing fee nor a motion to proceed without one. In February 2002, someone paid the $154 fee—but that was after the federal one-year deadline.
Smith’s current lawyers say Massey paid the fee but point out he didn’t ask the Alabama state court’s permission to appear before it in Smith’s case, what’s known as pro hac vice status.
Meanwhile, Johnson, Smith’s local counsel, had run into major personal and professional problems. Less than a month after the state habeas petition was filed without the fee, says the panel opinion, Johnson was charged with nine counts of possession of a controlled substance. The state bar promptly put Johnson, who had an ongoing drug addition, on inactive disability status and assigned an attorney to take over his case files, the panel wrote. According to the panel opinion, Johnson committed suicide in August 2002.
Two new Alabama attorneys ultimately took over representing Smith in the state court proceeding, and in October 2002, Massey notified those lawyers that he was withdrawing from the case. (Massey couldn’t be reached for comment for this story.)
The state court denied relief on all of Smith’s state habeas claims in May 2003. In July 2005, a few days after the U.S. Supreme Court declined to take up Smith’s appeal on the state courts’ decisions, the federal public defenders filed Smith’s federal habeas proceedings, arguing among other things that trial counsel had been ineffective on multiple fronts. U.S. District Judge Scott Coogler dismissed the federal petition because it was not considered filed within AEDPA’s one-year statute of limitations because the clock had continued to tick until the state habeas filing fee was paid.
On appeal, the panel of Eleventh Circuit Judges Barkett, Gerald Tjoflat and Frank Hull agreed that Smith hadn’t filed his state petition within the one-year federal deadline so as to meet the literal requirements of AEDPA. But they divided over whether the petition nonetheless should be considered timely filed under a rarely-applied fairness exception, with Barkett dissenting from the panel’s decision in the state’s favor.
Smith’s public defenders argued that Johnson’s personal problems constituted an extraordinary circumstance equivalent to abandonment or a gross breach of professional conduct such that he should be excused from the filing deadline. They added that since Massey didn’t obtain a pro hac vice admission in Alabama so that he would be authorized to act on Smith’s behalf in state court, he effectively had abandoned Smith, too. Smith’s lawyers pointed to Maples v. Thomas, the Alabama death penalty case in which the Supreme Court reversed the Eleventh Circuit last year, as well as Holland v. Florida, a 2010 case in which the Supreme Court reversed an Eleventh Circuit ruling on a missed deadline in a death penalty case.
Tjoflat and Hull rejected Smith’s arguments in an unsigned opinion. Even if Smith could show Johnson’s conduct excused the missed deadline, he had to show the same for Massey, they said. “Massey took steps on Smith’s behalf, both before and after the AEDPA limitations period ended,” they said. They noted Massey put his name on Smith’s state habeas petition, apparently filed it, sent a copy to Johnson and ultimately paid the filing fee. Massey did not file the state court petition without having local counsel and thus his not seeking pro hac vice status did not cause the petition to be stricken, the judges said. “Massey’s pro hac vice status is of no moment because local counsel was listed on the petition and local counsel’s signature was on it, too,” they added.
The judges said Massey found new local counsel to replace Johnson after learning that Johnson had been placed on disability inactive status and did not withdraw from the case until other attorneys had agreed to represent Smith, a full year after Smith’s AEDPA statute of limitations had run.
Tjoflat and Hull said the case was not like Maples. In that case, said the panel opinion, the inmate’s local counsel had made clear at the outset that he was not taking any substantive responsibility for the case, and the out-of-state lawyers had taken new jobs that disqualified them from representing the inmate. Massey didn’t abandon Smith, the panel said, but just didn’t file the filing fee in a timely fashion.
In her dissent, Barkett said Johnson’s troubles and Massey’s failure to obtain pro hac vice status constituted abandonment or at least a breach of professional standards sufficient to excuse the late filing. At the very least, said Barkett, the district court should have given Smith an evidentiary hearing on that issue. She called Johnson’s work “his so-called representation of Smith.”
“Smith’s allegations indicate that, other than agreeing to represent Smith and then a year later ‘withdrawing’ from Smith’s case, Massey did very little else,” she added.
According to Smith’s allegations, Barkett noted, neither Massey nor Johnson prepared the state habeas petition; they merely filed the petition that had been prepared by law student interns for the Equal Justice Initiative. Even when Massey was advised by Johnson’s office in October 2001 that he needed to complete the pro hac vice process and to pay the required filing fee, Massey didn’t pay the fee until several months later, when a lawyer for the state advised Johnson that the state two-year statute of limitations would expire in four days, Barkett wrote.
She said she thought the case wasn’t much different than Maples, where the Supreme Court noted that once the out-of-state attorneys assigned to represent Maples had left their firm, no other attorneys from the firm were admitted to practice in Alabama or otherwise had any legal authority to act on Maples’ behalf.
“The same can be said for Massey’s role in Smith’s case,” wrote Barkett. “His failure to obtain pro hac vice status in Alabama, a qualification required to represent Smith in Alabama state court proceedings, rendered him without any legal authority to act on behalf of Smith at the time critical to preserving Smith’s legal rights. And because Johnson was never competent to represent Smith … neither Massey nor Johnson ever meaningfully functioned as Smith’s attorneys.”
Barkett referred to a concurrence she wrote in a Florida death penalty case decided last year after the Supreme Court’s Maples ruling. In that matter, Barkett agreed with the other two members of the panel that Jeffrey Glenn Hutchinson’s federal habeas petition had to be dismissed under Supreme Court precedent. But she argued that the Supreme Court hadn’t gone far enough by excusing mistakes only in cases of complete lawyer abandonment or gross negligence. Hutchinson’s petition for certiorari was denied by the Supreme Court in October.
The case decided last week is Smith v. Commissioner, Alabama Department of Corrections, No. 11-13802.