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October 30, 2023

ABA asks Supreme Court to grant review in habeas case alleging attorney abandonment

CHICAGO, Oct. 30, 2023 — The American Bar Association filed an amicus brief Monday with the U.S. Supreme Court, urging the court to review a request by a Texas man on death row who is asking to reopen his federal habeas corpus proceedings on allegations that his lawyer abandoned him as a client.

The ABA brief cites a division among federal circuit courts of appeals as one of several reasons to consider the case. The 2nd, 7th and 9th Circuits have ruled that when counsel abandons a habeas petitioner, depriving him of the opportunity to have his claims heard in federal court, Federal Rule of Civil Procedure 60(b) provides a possible avenue to reopen the proceeding. The 5th Circuit, however, has held that the rule is categorically unavailable to a petitioner whose attorney has abandoned him, even in a capital case.

The brief explains that in 2003 the ABA adopted Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, which codified longstanding professional norms for effective representation at every stage of a capital case. The brief also notes that the Supreme Court long has referred to the ABA’s Death Penalty Guidelines as “guides to determining what is reasonable” attorney behavior in capital defense work.

The guidelines detail the extensive tasks that habeas counsel must complete while representing their death-sentenced client, including conducting a full reinvestigation of the case, raising all meritorious claims, and maintaining contact with the client — all of which habeas counsel allegedly failed to do in this case.

“The Fifth Circuit’s harsh rule poses a unique threat to the legitimacy of the capital system,” the ABA brief adds. “Federal law gives capital habeas petitioners a right to counsel and a fair opportunity to challenge their conviction and sentencing in federal court. But when an attorney functionally abandons a petitioner — robbing him of both rights — the Fifth Circuit always will deny relief. Rule 60(b) may be a death row inmate’s last means to correct a grave error before execution. Yet, it is an option open only in part of the country.”

In asking for review of the petitioner’s request, the ABA brief also cites previous cases in which the Supreme Court “has held that courts may reopen habeas judgments in extraordinary circumstances.” The brief argues that the attorney abandonment alleged in this capital case presents one of those circumstances, particularly because the punishment of death is “irrevocable.”

The ABA brief in the case Gamboa v. Lumpkin, is here. The law firm of Kellogg, Hansen, Todd, Figel & Frederick PLLC, filed the brief pro bono on behalf of the ABA.

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