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Revisiting the Right to Counsel in State Post-Conviction Proceedings?

Among the cases on last Thursday’s conference was No. 06-10605, Barbour v. Allen, which challenges the constitutionality of Alabama’s failure to provide appointed counsel to its death-row inmates for their state post-conviction proceedings. The case was brought as a class action on behalf of “more than 40 indigent death-row inmates who had no lawyers and no ability to recruit volunteer lawyers.” The complaint alleged that, by failing to provide either counsel to represent or assist the inmates in their state post-conviction proceedings or any other sort of legal assistance to enable them to present their claims effectively, the state violates the inmates’ federal constitutional rights of access to the courts and to counsel. The district court rejected this claims. On appeal, the Eleventh Circuit affirmed. In the court’s view, the inmates’ claim was governed by Murray v. Giarratano, in which the Supreme Court held that there is no federal constitutional right to post-conviction counsel. Moreover, the court explained, the inmates’ alternative claim – that they are at a minimum entitled to some form of legal assistance, even if not to counsel – was unavailing because they had failed to identify what kind of legal assistance might be appropriate.

The petition casts the issue in stark terms. Alabama, the inmates explain at the outset, “is the only State that makes no provision for any sort of legal assistance to enable its death-sentenced prisoners to prepare and present petitions for post-conviction relief.” And because the state now has the seventh-largest population of death row inmates in the U.S., the Equal Justice Initiative (which represents the petitioners in this suit) and the ABA are “no longer able to obtain enough volunteer lawyers to represent Alabama’s death-row prisoners.” The consequences of this shortage, according to the petition, have serious repercussions for death row inmates, who must grapple not only with “[t]he complexity of the substantive state and federal constitutional law bearing on the validity of a capital conviction and death sentence,” but also with “the state[] courts’ insistence on maintaining rigorously technical rules of postconviction pleading and practice that an unrepresented condemned inmate cannot typically comply with.” Moreover, the petition posits, problems stemming from the lack of representation at the state post-conviction stage may have ripple effects into federal habeas proceedings as well, particularly given the restrictions imposed by AEDPA on federal review of state post-conviction judgments.

Turning to the law governing their constitutional claims, petitioners acknowledge the “settled” “general proposition that there is ‘no underlying constitutional right to appointed counsel in state postconviction proceedings.’” Certiorari (and relief) is nonetheless warranted, they assert, for two reasons. First, they urge the Court to reconsider its holding in Giarratano in light of two sets of changed conditions: (1) changes in post-conviction procedures (including the restrictive federal habeas review resulting from AEDPA); and (2) the emergence of “an overwhelming national consensus” in favor of providing counsel for death-row inmates at the state post-conviction stage. Second, they contend that the Eleventh Circuit’s rejection of their claims improperly relied on the plurality opinion in Giarratano when it should have instead relied on Justice Kennedy’s narrower concurring opinion. Not only did Justice Kennedy advocate a “case-by-case approach” to determining whether the appointment of counsel is warranted, but the very conditions on which Justice Kennedy relied in his concurrence – i.e., the presence of institutional attorneys in Virginia’s prison system and the fact that all Virginia death-row inmates were able to obtain counsel – are absent in Alabama.

The state’s arguments opposing cert. can be summarized in two words: au contraire. In a curiously informal tone, the BIO devotes nearly seventeen of its forty pages to debunking what it regards as the factual premises of petitioners’ case. To begin, the state denounces “petitioners’ persistent suggestion that there are scores of Alabama death-row inmates without post-conviction representation” as “simply, categorically, and verifiably untrue.” Casting its AG’s office as David facing a Yankee – sorry, I mean, out-of-town – Goliath, the state explains that virtually all of Alabama’s death-row inmates not only have attorneys but have darned good (not to mention darned well-paid) ones, often from the country’s major law firms. Also “categorically false,” the BIO asserts, is the contention that the state’s “post-conviction procedures are hopelessly complex.”

Turning to petitioners’ legal arguments, the state emphasizes first that the petition does not present either a division among the circuits nor an issue of national importance. Nor, the state continues, is certiorari warranted based either on the prospect of overruling the Court’s decision in Murray v. Giarratano or because the Eleventh Circuit erroneously relied on the plurality opinion in that case: the Eleventh Circuit’s decision rested not only on Giarratano but on the long line of precedent “that led to and followed” it. And in any event, as the BIO has previously sought to demonstrate, the Eleventh Circuit’s decision is not inconsistent with Justice Kennedy’s controlling opinion in Giarratano because Alabama inmates, “like the Virginia inmates at issue in Giarratano, are, in fact, well-represented in post-conviction proceedings.”

Barbour’s petition garnered the support of two separate amicus briefs. First, the Constitution Project (represented by former Solicitor General Seth Waxman) echoes Barbour’s argument that “Alabama’s failure to provide . . . post-conviction assistance to death row inmates, combined with a general scaling back of federal habeas remedies, leaves uncorrected too many potential errors in a context in which errors literally mean the difference between life and death.” Second, a group of Alabama appellate judges and state bar presidents urge the Court to grant certiorari, explaining that – unlike Giarratano – “today death-sentenced indigents sit on death row without counsel.” The absence of counsel at the post-conviction stage, the brief continues, is particularly significant given the “compromised system of representation at the trial level that renders many verdicts and sentences unreliable.”

Interestingly, Barbour et al. apparently did not file a reply brief. The case was originally distributed for consideration at the Court’s June 7 conference, but the electronic docket indicates that the case was re-listed for the conference on Thursday. In the end, the Court’s decision whether to grant cert. may (not surprisingly) boil down to whether four justices believe that the state’s system truly results in unrepresented inmates. And in that regard, the state’s BIO may have, at the very least, sufficiently clouded the issue to stave off cert.