Texas man on death row presses claim of attorney abandonment

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Individuals held in state prison can challenge their convictions in federal court through a device known as a petition for a writ of habeas corpus. But under the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA, they generally only have one opportunity to do so. This week, we highlight petitions that ask the court to consider, among other things, whether AEDPA bars a man on death row in Texas from arguing that his attorney abandoned him because doing so would require an unlawful “second or successive” petition for habeas corpus.

Joseph Gamboa was sentenced to death in 2007 for the murder of two men in a bar in San Antonio, Texas. He spent eight years unsuccessfully appealing and then challenging both his conviction and sentence in state court. In 2015, Gamboa sought to file a petition for habeas corpus to challenge his conviction in federal court. Because he could not afford an attorney, the court appointed John Ritenour, Jr., to represent him.

According to Gamboa, Ritenour failed him. Ritenour met with Gamboa in prison only once and did not investigate any of the claims Gamboa asked him to pursue, including testimony that someone else had committed the murders and possible corroborating witnesses. At their sole meeting, Gamboa alleges, Ritenour told him he had decided Gamboa was guilty.

After a year’s worth of extensions, Ritenour filed a habeas petition on Gamboa’s behalf, raising only a handful of boilerplate challenges to the state’s death penalty laws. The petition was copied extensively from an unsuccessful filing Ritenour had just submitted on behalf of another client, Obie Weathers. It even included a leftover mention of Mr. Weathers’ name. When the state responded that all of the claims were either procedurally barred because they had not been raised in state court or substantively foreclosed by prior decisions, Ritenour filed a two-paragraph reply – nearly a month late – in agreement.

Gamboa filed a motion, written on his own, to dismiss Ritenour as his attorney. A federal district court in Texas denied the motion, in part because it did not comply with procedural rules. Relying on the concession in Ritenour’s reply, it then denied Gamboa’s habeas petition.

After obtaining new legal representation, Gamboa filed a motion to reopen the judgment on the ground that Ritenour had “abandoned” him.

The district court denied that motion as well, and the U.S. Court of Appeals for the 5th Circuit affirmed. Relying on a prior circuit decision, the 5th Circuit held that a motion to reopen the judgment for a procedural defect like attorney abandonment is always a prohibited second or successive habeas petition under AEDPA. “Troubling though Gamboa’s allegations of attorney abandonment may be,” the court of appeals concluded, he is thus barred from raising them after the fact.

In a concurring opinion, Judge James Dennis agreed that the court of appeals was bound by its earlier cases, but he urged the full court to reconsider and overrule that precedent. In some cases, he contended, a motion like Gamboa’s that alleges attorney abandonment “can, in at least some instances, attack a defect in the integrity of the habeas proceedings” and therefore would be appropriate.

In Gamboa v. Lumpkin, Gamboa asks the justices to grant review and reverse the 5th Circuit’s ruling. He argues that three other federal courts of appeals have adopted the opposite rule, under which his motion to reopen the judgment on the ground of attorney abandonment would not be tossed out as a second or successive petition for habeas corpus. “But in the Fifth Circuit,” Gamboa writes, he “will be put to death without having the assistance of counsel to file his habeas petition.”

A list of this week’s featured petitions is below:

Gamboa v. Lumpkin
23-323
Issue: Whether a Federal Rule of Civil Procedure 60(b) motion claiming that habeas counsel’s abandonment prevented the consideration of a petitioner’s claims should always be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby.

Ferreyra v. Hicks
23-324
Issues: (1) Whether a cause of action exists under Bivens v. Six Unknown Federal Narcotics Agents for Fourth Amendment claims against federal officers operating under a different legal mandate than the narcotics officers in Bivens; and (2) whether a cause of action exists under Bivens for Fourth Amendment claims not involving a search or arrest inside a home.

South Carolina State Ports Authority v. National Labor Relations Board
23-325
Issues: (1) Whether a union’s unlawful secondary boycott is shielded by the work-preservation defense because the targeted secondary employer could choose to take its business elsewhere and, in that way, can “control” the primary employer’s work assignments; and (2) whether a union’s unlawful secondary boycott is shielded by the work-preservation defense even when no bargaining unit jobs are threatened.

Canada v. United States
23-327
Issue: Whether the review of the evidence in a suppression-hearing record “in the light most favorable to the government” conflicts with the standard of review articulated in Ornelas v. United States and impermissibly places a thumb on the scales in favor of the prosecution in resolving Fourth Amendment claims.

United States v. Muñoz
23-334
Issues: (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due; and (3) whether, assuming that such a constitutional interest exists and that citing Section 1182(a)(3)(A)(ii) is insufficient standing alone, due process requires the government to provide a further factual basis for the visa denial “within a reasonable time,” or else forfeit the ability to invoke consular nonreviewability in court.