April 27, 2014

Florida Executes Prisoner Without Federal Court Review of Constitutional Claims

On February 26, 2014, Paul A. Howell became one of the first Florida death row prisoners to be involuntarily executed without any federal court review of his constitutional claims. Approximately one month earlier, Mr. Howell’s lawyers filed a petition with the U.S. Supreme Court asking it to reverse a lower court’s ruling that barred federal court review of the constitutionality of Mr. Howell’s state conviction and sentence. The ABA, with generous assistance from volunteer lawyers at Orrick, Herrington & Sutcliffe LLP, filed an amicus brief in support of that petition, urging the Court to review the case. The Court took no action on the petition until minutes before Mr. Howell’s execution, when it denied certiorari and rejected a request for a stay of execution in a one-sentence order without any further comment.

Nearly ten years ago, Mr. Howell’s court-appointed habeas attorney missed a critical filing deadline under the federal Anti-Terrorism and Effective Death Penalty Act (AEDPA). AEDPA requires that a petition for federal habeas corpus review be filed within one year after a sentence becomes “final.” Mr. Howell’s inexperienced lawyer did not understand even the most basic aspects of AEDPA’s timing mechanisms, and she failed to file her client’s habeas petition within that one-year window. Her error resulted in a procedural bar to any future federal court review of the merits of Mr. Howell’s constitutional claims. When Mr. Howell sought to have the procedural bar set aside on equitable grounds, arguing that he should not be held accountable for this egregious mistake by his appointed counsel, the U.S. Court of Appeals for the Eleventh Circuit applied a rigid standard and refused to toll the statute of limitations. The Supreme Court later rejected using that same standard in another case, Holland v. Florida, 560 U.S. 631 (2010), instructing courts to employ a more flexible approach. Mr. Howell subsequently asked the courts to set aside his final judgment, thereby allowing for reconsideration of his equitable claim under the approach mandated by Holland and opening the door to federal court review of the merits of his constitutional claims. This request was rejected by both the district court and Eleventh Circuit, and it formed the basis of his petition to the U.S. Supreme Court.

If he had been able to access federal court review, Mr. Howell was prepared to argue that he received constitutionally ineffective assistance of counsel at trial. He was initially charged in both state and federal court for the same underlying offense, and the two courts appointed the same attorney to represent him in both cases. In the federal case, his attorney moved to withdraw, alleging that Mr. Howell’s relatives made a threatening phone call to his wife and arguing that he could not continue the representation under these circumstances. The federal court agreed and permitted the attorney’s withdrawal. In the state case, however, the attorney did not seek withdrawal and in fact contested the prosecution’s motion for his removal, which was supported by Mr. Howell. The state court denied the motion, allowing the attorney to remain on the case, even though an intervening FBI investigation determined that the attorney had fabricated the allegations. In his petitions seeking federal court review, Mr. Howell's attorneys, Sonya Rudenstine and Michael Ufferman, alleged that this conflict seriously affected his defense counsel’s performance at trial. They claimed that Mr. Howell's trial counsel provided deficient representation in several respects, including failure to conduct an adequate mitigation investigation, failure to consult appropriate medical and psychological experts, and failure to solicit the testimony of witnesses who could have testified on Mr. Howell’s behalf.

Writing separately from the Eleventh Circuit’s denial of Mr. Howell’s petition to reopen his case, Judge Rosemary Barkett agreed that Mr. Howell appeared to have several viable claims of ineffective assistance of counsel. She wrote that she found the outcome of his case “unjust and inequitable” but felt constrained by Eleventh Circuit precedent to uphold the district court decision denying access to the federal courts. Judge Barkett concluded her opinion with a frank and powerful summary of the way that procedural rules and ineffective counsel systems combine to deny prisoners their constitutional protections, even where the stakes are highest:

[T]his is another case where a state’s wholly inadequate system for appointing or funding habeas counsel conspires with a thicket of complex state and federal habeas procedural rules to deny habeas petitioners the opportunity to have their substantive constitutional claims heard by a federal court. What results is a habeas system wherein unqualified and incompetent attorneys regularly fail to ably navigate the procedural waters established by state and federal statutes. This system, which consistently leads to death row inmates being denied an opportunity to present non-frivolous habeas claims, is, in my view, antithetical to the promise of habeas corpus enshrined in the Constitution.

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