In a rare move, the United States Court of Appeal for the Eleventh Circuit has voted to rehear a case en banc. The case, Michael Duane Zack III v. Tucker, No. 09-12717, concerns the issue of timeliness of federal habeas claims. In the original opinion, released in January, 2012, the Court held that the District Court erred in applying the statute of limitations separately to each claim in the petition to find that only certain claims were timely filed. I suspect that most criminal defense and criminal appellate lawyers would agree that it seems logical that the timeliness of a federal habeas petition should be viewed as to the whole petition, not claim-by-claim. I certainly hope that the Court does not change its conclusion on rehearing. The order granting rehearing en banc can be viewed here. For those of you who practice in the Southern District of Florida, take note that our own Judge Jordan’s name appears on the order granting rehearing.
This is a follow up to my last post, where I discussed an opinion issued by the United States Supreme Court, Missouri v. Frye, No. 10-444, wherein the Court held that a criminal defense lawyer’s failure to communicate a plea offer may provide a basis for federal habeas relief. In Lafler v. Cooper, No. 10-209, issued the same day as Frye, the Court addressed the issue of what remedies may be available to such a federal habeas petitioner.
Lafler went to trial rather than accept a plea deal. Because Lafler received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty, all the parties conceded that Lafler’s decision to reject the plea offer was the result of ineffective assistance during the plea negotiation process. As a result, the specific issue addressed by the Court was “how to apply Strickland’s prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.” Lafler, slip op. at pgs. 4-7.
Although the District Court ordered specific performance of the original plea agreement as a remedy, the Court held that the correct remedy under the circumstances is to order the State of Michigan to reoffer the plea agreement. If Lafler accepts the offer, the state trial court would then be free to exercise its discretion under the relevant State law to determine whether to vacate the convictions and resentence Lafler pursuant to the plea agreement, to vacate only some of the convictions and resentence Lafler accordingly, or to leave the convictions and sentence from trial undisturbed. As noted by the Court, its decision “leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.” Lafler, slip op. at pg. 16.
In my view, this decision is yet another step by the Court to becoming a kinder, more gentler Court for federal habeas petitioners. For one of my previous posts on the Court’s change, click here. To read more about the oral arguments in the companion cases of Frye and Lafler, click here.
If you are a Florida criminal defense lawyer that handles federal habeas petitions in capital cases, the United States Supreme Court has issued an opinion that you may be interested in reading. In Martel v. Clair, No. 10-1265, the Court held that motions to substitute counsel brought under 18 U.S.C. § 3599(e) should be evaluated using the same “interests of justice” standard applied in non-capital cases under a 18 U.S.C. § 3006A. In so doing, the Court agreed with Clair, not the State of California, as to the standard that should be applied.
However, the Court went on to hold that Clair failed to show that the District Court abused its discretion when it denied Clair’s motion to substitute counsel. In support of such holding, the Court reasoned that (1) during the 10 year period that Clair’s habeas petition was being litigated, Clair had filed, then dropped, several previous motions to substitute counsel; (2) the Court had already held an evidentiary hearing and entertained substantial post-hearing briefing; (3) because the motion for substitution of counsel claimed that new evidence had been discovered, granting Clair’s motion would mean that the District Court would have had to allow Clair to either amend his habeas petition, and allow a stay of the petition to allow Clair to exhaust his remedies in State court; and, (4) by the time that Clair had filed his motion to substitute counsel, the District Court had already ruled that further submissions would not be permitted.
The end result of the case may seem harsh. After all, the Supreme Court affirmed the District Court’s denial of Clair’s motion to substitute counsel, observing that “[t]he court was not required to appoint a new lawyer just so Clair could file a futile motion.” Clair, No. 10-1265, slip op. at pg. 16. However, attorneys familiar with capital cases and habeas proceedings should not be surprised that the Court had to call an end to the litigation at some point in time.