Cite as: 574 U. S. ____ (2015) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
MARK A. CHRISTESON v. DON ROPER, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 14–6873. Decided January 20, 2015
PER CURIAM.
Petitioner Mark Christeson’s first federal habeas peti-
tion was dismissed as untimely. Because his appointed
attorneys—who had missed the filing deadline—could not
be expected to argue that Christeson was entitled to the
equitable tolling of the statute of limitations, Christeson
requested substitute counsel who would not be laboring
under a conflict of interest. The District Court denied the
motion, and the Court of Appeals for the Eighth Circuit
summarily affirmed. In so doing, these courts contra-
vened our decision in Martel v. Clair, 565 U. S. ___ (2012).
Christeson’s petition for certiorari is therefore granted,
the judgment of the Eighth Circuit is reversed, and the
case is remanded for further proceedings.
I
In 1999, a jury convicted Christeson of three counts of
capital murder. It returned verdicts of death on all
three counts. The Missouri Supreme Court affirmed
Christeson’s conviction and sentence in 2001, see State v.
Christeson, 50 S. W. 3d 251 (en banc), and affirmed the
denial of his postconviction motion for relief in 2004, see
Christeson v. State, 131 S. W. 3d 796 (en banc).
Under the strict 1-year statute of limitations imposed by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U. S. C. §2244(d)(1), Christeson’s federal
habeas petition was due on April 10, 2005. Nine months
before this critical deadline, the District Court appointed
attorneys Phil Horwitz and Eric Butts to represent
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Christeson in his federal habeas proceedings. See 18
U. S. C. §3599(a)(2) (providing for appointment of counsel
for state death row inmates).
Horwitz and Butts, as they have subsequently acknowl-
edged, failed to meet with Christeson until more than six
weeks after his petition was due. See App. to Pet. for Cert.
93a. There is no evidence that they communicated with
their client at all during this time. They finally filed the
petition on August 5, 2005—117 days too late. They have
since claimed that their failure to meet with their client
and timely file his habeas petition resulted from a simple
miscalculation of the AEDPA limitations period (and in
defending themselves, they may have disclosed privileged
client communications). See id., at 90a–92a, 135a. But a
legal ethics expert, reviewing counsel’s handling of
Christeson’s habeas petition, stated in a report submitted
to the District Court: “[I]f this was not abandonment, I am
not sure what would be.” Id., at 132a.
The District Court dismissed the petition as untimely,
and the Court of Appeals denied Christeson’s application
for a certificate of appealability. Christeson, who appears
to have severe cognitive disabilities that lead him to rely
entirely on his attorneys, may not have been aware of this
dismissal. See id., at 229a, 231a, 237a.
Nearly seven years later, Horwitz and Butts contacted
attorneys Jennifer Merrigan and Joseph Perkovich to
discuss how to proceed in Christeson’s case. Merrigan and
Perkovich immediately noticed a glaring problem.
Christeson’s only hope for securing review of the merits of
his habeas claims was to file a motion under Federal Rule
of Civil Procedure 60(b) seeking to reopen final judgment
on the ground that AEDPA’s statute of limitations should
have been equitably tolled. But Horwitz and Butts could
not be expected to file such a motion on Christeson’s be-
half, as any argument for equitable tolling would be prem-
ised on their own malfeasance in failing to file timely the
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habeas petition. While initially receptive to Merrigan and
Perkovich’s assistance, Horwitz and Butts soon refused to
allow outside counsel access to their files. See App. to Pet.
for Cert. 345a.
On May 23, 2014, Merrigan and Perkovich filed a mo-
tion for substitution of counsel. The District Court denied
the motion, explaining only that it was “not in
[Christeson’s] best interest to be represented by attorneys
located in New York and Pennsylvania,” as Merrigan and
Perkovich are. Id., at 169a. The District Court did not
address Merrigan and Perkovich’s offer to forgo all fees
and expenses associated with travel to Missouri, nor did it
address the possibility of appointing other attorneys for
Christeson.
Christeson appealed. The Eighth Circuit dismissed for
lack of jurisdiction, apparently reasoning that Merrigan
and Perkovich were not authorized to file an appeal on
Christeson’s behalf.1 On September 19, 2014, while this
appeal was still pending before the Eighth Circuit, the
Missouri Supreme Court issued a warrant of execution
setting October 29, 2014, as Christeson’s execution date.
After further proceedings not relevant here, Merrigan
and Perkovich again filed a motion for substitution of
counsel on Christeson’s behalf. The District Court again
denied the motion. Explaining that substitution of
“federally-appointed counsel is warranted only when it would
serve the interests of justice,” it offered four reasons for its
decision. Order in No. 04–CV–08004 (WD Mo., Oct. 22,
2014), p. 1, App. to Pet. for Cert. 375a (quoting Lambrix v.
Secretary, Florida Dept. of Corrections, 756 F. 3d 1246,
1259 (CA11 2014); internal quotation marks omitted).
First, it deemed the motion to be untimely because it “was
not filed until 2014, and shortly before [Christeson’s]
——————
1 Christeson has since submitted a signed retainer agreement with
Merrigan and Perkovich that removes any doubt on that score.
4 CHRISTESON v. ROPER
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execution date.” App. to Pet. for Cert. 375a. Second, it
observed that Horwitz and Butts had not “abandoned”
Christeson, as they had recently appeared on his behalf in
a class-action lawsuit challenging Missouri’s lethal injec-
tion protocol. Id., at 376a. Third, it noted that although
Horwitz and Butts had represented Christeson before the
Eighth Circuit, that court had not appointed substitute
counsel. Ibid. Fourth and finally, the District Court
expressed its belief that granting the motion would set “an
untenable precedent” by allowing outside attorneys to seek
“ ‘abusive’ ” delays in capital cases. Ibid.
Christeson again appealed. This time, the Eighth Cir-
cuit summarily affirmed the District Court’s order. We
stayed Christeson’s execution, see post, p. ____, and now
reverse.
II
Title 18 U. S. C. §3599 “entitles indigent defendants to
the appointment of counsel in capital cases, including
habeas corpus proceedings.” Martel v. Clair, 565 U. S., at
___ (slip op., at 1). “By providing indigent capital defend-
ants with a mandatory right to qualified legal counsel in
these proceedings, Congress has recognized that federal
habeas corpus has a particularly important role to play in
promoting fundamental fairness in the imposition of the
death penalty.” McFarland v. Scott, 512 U. S. 849, 859
(1994). Congress has not, however, conferred capital
habeas petitioners with the right to counsel of their choice.
Instead, the statute leaves it to the court to select a
properly qualified attorney. See §§3599(a)–(d). But the
statute contemplates that a court may “replace” appointed
counsel with “similarly qualified counsel . . . upon motion”
of the petitioner. §3599(e).
We addressed the standard that a court should apply in
considering such a motion in Clair. We rejected the ar-
gument that substitution of an appointed lawyer is war-
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ranted in only three situations: “when the lawyer lacks the
qualifications necessary for appointment . . . ; when he has
a disabling conflict of interest; or when he has completely
abandoned the client.” 565 U. S., at ___ (slip op., at 7)
(internal quotation marks omitted). Instead, we adopted a
broader standard, holding that a motion for substitution
should be granted when it is in the “ ‘interests of justice.’ ”
Id., at ___ (slip op., at 13). We further explained that the
factors a court of appeals should consider in determining
whether a district court abused its discretion in denying
such a motion “include: the timeliness of the motion; the
adequacy of the district court’s inquiry into the defend-
ant’s complaint; and the asserted cause for that complaint,
including the extent of the conflict or breakdown in com-
munication between lawyer and client (and the client’s
responsibility, if any, for that conflict).” Ibid.
The District Court here properly recognized that its
consideration of Christeson’s motion for substitution was
governed by Clair’s “interests of justice” standard. But its
denial of his motion did not adequately account for all of
the factors we set forth in Clair.
The court’s principal error was its failure to
acknowledge Horwitz and Butts’ conflict of interest. Toll-
ing based on counsel’s failure to satisfy AEDPA’s statute
of limitations is available only for “serious instances of
attorney misconduct.” Holland v. Florida, 560 U. S. 631,
651–652 (2010). Advancing such a claim would have
required Horwitz and Butts to denigrate their own per-
formance. Counsel cannot reasonably be expected to make
such an argument, which threatens their professional
reputation and livelihood. See Restatement (Third) of
Law Governing Lawyers §125 (1998). Thus, as we ob-
served in a similar context in Maples v. Thomas, 565 U. S.
___, ___, n. 8 (2012) (slip op., at 17, n. 8), a “significant
conflict of interest” arises when an attorney’s “interest in
avoiding damage to [his] own reputation” is at odds with
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his client’s “strongest argument—i.e., that his attorneys
had abandoned him.”
Indeed, to their credit, Horwitz and Butts acknowledged
the nature of their conflict. Shortly before the first motion
for substitution was filed, they provided an update to the
Missouri Supreme Court on the status of Christeson’s
collateral proceedings. In it, they stated:
“Because counsel herein would be essential witnesses
to factual questions indispensable to a Holland in-
quiry, there may be ethical and legal conflicts that
would arise that would prohibit counsel from litigat-
ing issues that would support a Holland claim. Un-
waivable ethical and legal conflicts prohibit under-
signed counsel from litigating these issues in any way.
See Holloway v. Arkansas, 435 U. S. 475, 485–486
(1978). Conflict free counsel must be appointed to
present the equitable tolling question in federal dis-
trict court.” App. to Pet. for Cert. 48a–49a.
Yet, in their response to the District Court’s order to
address the substitution motion, Horwitz and Butts char-
acterized the potential arguments in favor of equitable
tolling as “ludicrous,” and asserted that they had “a legal
basis and rationale for the [erroneous] calculation of the
filing date.” Id., at 86a, 90a. While not every case in
which a counseled habeas petitioner has missed AEDPA’s
statute of limitations will necessarily involve a conflict of
interest, Horwitz and Butts’ contentions here were directly
and concededly contrary to their client’s interest, and
manifestly served their own professional and reputational
interests.
Clair makes clear that a conflict of this sort is grounds
for substitution. Even the narrower standard we rejected
in that case would have allowed for substitution where an
attorney has a “ ‘disabling conflict of interest.’ ” 565 U. S.,
at ___ (slip op., at 7). And that standard, we concluded,
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would “gu[t]” the specific substitution-of-counsel clause
contained in §3559(e), which must contemplate the grant-
ing of such motions in circumstances beyond those where a
petitioner effectively “has no counsel at all”—as is the case
when counsel is conflicted. Id., at ___ (slip op., at 10).
Indeed, we went so far as to say that given a capital de-
fendant’s “statutory right to counsel,” even “in the ab-
sence” of §3599(e) a district court would be compelled “to
appoint new counsel if the first lawyer developed a con-
flict.” Ibid.
Given the obvious conflict of interest here, the consider-
ations relied upon by the District Court cannot justify its
decision to deny petitioner new counsel. The second and
third factors noted by the District Court—that appointed
counsel continued to represent Christeson in litigation
challenging the means of his execution, and that the
Eighth Circuit had not previously substituted counsel—
are not substantial. Whether Horwitz and Butts had
currently “abandoned” Christeson is beside the point:
Even if they were actively representing him in some mat-
ters, their conflict prevented them from representing him
in this particular matter. Likewise, it is irrelevant that
the Eighth Circuit had not previously sua sponte directed
substitution of counsel in the course of denying
Christeson’s request for a certificate of appealabilty and
adjudicating his challenge to Missouri’s execution protocol,
when the conflict was not evident.
The first and fourth factors cited by the District Court—
the delay in seeking substitution and the potential for
abuse—might be valid considerations in many cases. See
Clair, 565 U. S., at ___ (slip op., at 12) (“Protecting against
abusive delay is an interest of justice”). But under the
circumstances here, these factors alone cannot warrant
denial of substitution. Christeson’s first substitution
motion, while undoubtedly delayed, was not abusive. It
was filed approximately a month after outside counsel
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became aware of Christeson’s plight and well before the
State had set an execution date, and it requested only 90
days to investigate and file a Rule 60(b) motion.
Nor is it plain that any subsequent motion that substi-
tute counsel might file on Christeson’s behalf would be
futile. See id., at ___ – ___ (slip op., at 15–16) (affirming
denial of substitution motion as untimely where any filing
made by substitute counsel would have been futile). To be
sure, Christeson faces a host of procedural obstacles to
having a federal court consider his habeas petition. Al-
though Christeson might properly raise a claim for relief
pursuant to Rule 60(b), see Gonzalez v. Crosby, 545 U. S.
524, 535–536 (2005), to obtain such relief he must demon-
strate both the motion’s timeliness and, more significant
here, that “ ‘extraordinary circumstances’ justif[y] the
reopening of a final judgment.” Id., at 535 (quoting
Ackermann v. United States, 340 U. S. 193, 199 (1950)).
That, in turn, will require Christeson to show that he was
entitled to the equitable tolling of AEDPA’s statute of
limitations. He should have that opportunity, and is
entitled to the assistance of substitute counsel in doing so.
* * *
The petition for certiorari and the motion to proceed in
forma pauperis are granted. The judgment of the Eighth
Circuit Court of Appeals is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 574 U. S. ____ (2015) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
MARK A. CHRISTESON v. DON ROPER, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 14–6873. Decided January 20, 2015
JUSTICE ALITO, with whom JUSTICE THOMAS joins,
dissenting.
I would not reverse the decision of the Court of Appeals
in this case without briefing and argument. As the Court
acknowledges, petitioner cannot obtain review of the
merits of his federal habeas claims without showing that
the applicable statute of limitations should have been
equitably tolled, ante, at 2, and the availability of equit-
able tolling in cases governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) is a question
of great importance.
AEDPA sought to ameliorate the lengthy delay that had
often characterized federal habeas proceedings in the
past.* See Woodford v. Garceau, 538 U. S. 202, 206 (2003)
(“Congress enacted AEDPA to reduce delays in the execu-
tion of state and federal criminal sentences, particularly in
capital cases”). AEDPA thus imposed a strict 1-year time
limit for filing a federal habeas petition. 28 U. S. C.
§2244(d). If this 1-year period were equitably tolled
whenever a habeas petitioner’s attorney missed the dead-
line and thus rendered ineffective assistance, the 1-year
period would be of little value, and the days of seemingly
interminable federal habeas review would return. In
——————
* Members of this Court have lamented the delay that often occurs in
capital cases. Johnson v. Bredesen, 558 U. S. 1067, 1067–1070 (2009)
(Stevens, J., statement respecting denial of certiorari), Elledge v.
Florida, 525 U. S. 944, 944–946 (1998) (BREYER, J., dissenting from
denial of certiorari).
2 CHRISTESON v. ROPER
ALITO, J., dissenting
Holland, the Court held that the AEDPA statute of limita-
tions may be equitably tolled—but only under quite ex-
traordinary circumstances. Holland v. Florida, 560 U. S.
631, 651–652 (2010). Any expansion or further delinea-
tion of such circumstances should not be undertaken
without the careful consideration that is possible only
after the normal procedure of full briefing and argument.
The Court believes that briefing and argument are not
necessary in this case, and my understanding of the
Court’s decision is that it expresses no view whatsoever on
the question whether petitioner may ultimately be entitled
to equitable tolling. I understand the Court to hold only
that conflict-free substitute counsel should have been
appointed for the purposes of investigating the facts re-
lated to the issue of equitable tolling and presenting what-
ever argument can be mounted in support of a request for
that relief.
Based on the present record, it is not clear that this case
involves anything other than an error, albeit a serious one,
on the part of the attorneys who represented petitioner at
the time when his federal habeas petition was due to be
filed. According to those attorneys, they miscalculated the
due date and as a result filed the petition after the time
had run. They met with petitioner to discuss the habeas
petition prior to the date on which they say they thought
the petition was due but after the date on which it was
actually due. These facts show nothing more than attor-
ney error and thus fall short of establishing the kind of
abandonment that is needed for equitable tolling under
our precedent. See id., at 651–652. I do not understand
the Court’s opinion to hold otherwise.
Because of the close relationship between the question
that the Court decides (the propriety of the District
Court’s refusal to appoint substitute counsel) and the
question of petitioner’s entitlement to equitable tolling, I
think that plenary review would have been more appro-
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ALITO, J., dissenting
priate in this case. I write separately to emphasize that
the Court’s summary disposition does not address that
issue.