Harbison v. Bell

2009-04-01

Headline: Court allows federally appointed lawyers to represent death-row state prisoners in state clemency proceedings and rules a certificate of appealability not required to appeal denial of such counsel, expanding counsel continuity and compensation.

Holding: The Court held that a certificate of appealability is not required to appeal the denial of federally appointed counsel and that 18 U.S.C. §3599 authorizes federal counsel to represent clients in state clemency proceedings and be paid.

Real World Impact:

Lets death-row state prisoners keep federally funded counsel for clemency.
Reduces need to find new lawyers near execution dates.
Allows federal courts to order payment for clemency representation.

Topics: clemency, death penalty, habeas petitions, appointed counsel

Summary

Background

Edward Harbison is a Tennessee death-row prisoner who received a federal public defender to pursue a habeas petition under 28 U.S.C. §2254. Counsel developed new evidence but the federal habeas petition was denied. Harbison then asked his federally appointed lawyer to represent him in state clemency proceedings after state law barred appointment of state public defenders for clemency. The District Court denied the request relying on Sixth Circuit precedent, and the Sixth Circuit affirmed. The Supreme Court took the case to resolve two questions about appeals and counsel.

Reasoning

The Court first held a certificate of appealability (COA) was not required to appeal the denial because COA applies only to final decisions resolving habeas claims on the merits. On the main issue, the Court read 18 U.S.C. §3599’s subsections (a)(2) and (e) together. It concluded that when federal counsel is appointed for a state habeas case, the statute’s plain language requires that counsel “shall also represent” the client in “proceedings for executive or other clemency as may be available,” which includes state clemency. The Court rejected the Government’s arguments about absurd results and legislative history, explained that counsel’s duties begin with post-conviction proceedings, and held federally appointed counsel may be compensated for clemency work.

Real world impact

The decision lets death-sentenced state prisoners keep federally funded counsel to pursue state clemency, reducing the need to locate new lawyers and helping clemency applications use evidence gathered in federal habeas work. The ruling reverses the Sixth Circuit and requires federal courts to authorize and compensate such representation when §3599 applies.

Dissents or concurrances

Several Justices joined the opinion; Chief Justice Roberts and Justice Thomas concurred in the judgment but offered narrower reasoning about the reach of counsel in later state court proceedings. Justice Scalia, joined by Justice Alito, would have limited §3599 to federal proceedings and affirmed the Sixth Circuit.