[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 8, 2006
No. 06-10920 THOMAS K. KAHN
CLERK
D. C. Docket No. 01-01530 CV-S-N
CHRISTOPHER BARBOUR,
TONY BARKSDALE, et al.,
Plaintiffs-Appellants,
versus
MICHAEL HALEY,
in his official capacity as Commissioner,
for the Alabama Department of Corrections,
STEPHEN BULLARD,
in his official capacity as Warden of
William E. Donaldson Correctional Facility, et al.
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Alabama
(December 8, 2006)
Before ANDERSON and DUBINA, Circuit Judges, and VINSON,* District Judge.
DUBINA, Circuit Judge:
In this appeal, we consider whether the Sixth, Eighth, and Fourteenth
Amendments guarantee Appellants, indigent Alabama death-sentenced inmates
(“the inmates”), the right to state-appointed counsel or some lessor form of state-
provided legal assistance for the preparation and presentation of their
postconviction claims. Relying upon United States Supreme Court and Eleventh
Circuit precedents, as we must, we conclude that the United States Constitution
does not afford appointed counsel on collateral review, and the inmates have failed
to identify a lessor form of state-provided legal assistance to which they might be
entitled. For these reasons, we affirm the district court’s dismissal of the inmates’
42 U.S.C. § 1983 claims.
I. BACKGROUND
On December 28, 2001, the inmates filed a class action complaint against
the Commissioner for the Alabama Department of Corrections, the Wardens of
William E. Donaldson Correctional Facility and Holman State Prison (the facilities
in which the inmates are incarcerated), and the Governor of the State of Alabama
(defendants collectively referred to as “the State”). The inmates, pursuant to 42
____________
*Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
2
U.S.C. § 1983, alleged that the State violated their First, Sixth, Eighth, and
Fourteenth Amendment rights by (1) failing to provide counsel or any other form
of legal assistance for the preparation and presentation of their postconviction
claims, and (2) obstructing communication between the inmates and lawyers
through restrictive visitation policies. The parties consented to have a magistrate
judge conduct all proceedings and enter judgment under 28 U.S.C. § 636(c).
Thereafter, the State filed motions to dismiss for lack of subject matter
jurisdiction. On March 24, 2003, the magistrate judge dismissed, for lack of
subject matter jurisdiction, count two of the inmates’ complaint.1 The inmates
moved for final judgment on the remaining issues and the State moved for
summary judgment. Pursuant to a settlement between the parties, the magistrate
judge dismissed the inmates’ claims for interference with their efforts to gain
access to legal assistance during the collateral review process. On January 23,
2006, the magistrate judge entered final judgment in favor of the State. The
magistrate judge held that the right of meaningful access did not require the State
to provide counsel to death-sentenced inmates for the purpose of investigating and
filing postconviction petitions; Christopher v. Harbury, 536 U.S. 403, 122 S. Ct.
1
The court referred to count two as the inmates’ Sixth Amendment claims, but in actuality,
count two alleged a “policy, pattern, and practice of arbitrary and capricious interference with
Plaintiffs’ efforts to gain access to legal assistance during the collateral review process” in violation
of the Eighth and Fourteenth Amendments. Count one of the complaint alleged First, Sixth, and
Fourteenth Amendment violations for failure to provide a mechanism to ensure that the inmates had
access to the assistance of counsel for the preparation of their state postconviction petitions and
interference with the inmates’ efforts to access their legal teams during the collateral review process.
3
2179 (2002), foreclosed the inmates’ claims for some lessor form of legal
assistance; and the inmates’ Sixth Amendment claims lacked merit (referring to its
previous order in which the court ruled that there is no constitutional right to state-
appointed counsel in postconviction proceedings). The magistrate judge’s final
order did not specifically address the inmates’ Eighth Amendment claims;
however, the court’s earlier order which dismissed count two of the complaint
included those claims.2 The inmates then perfected this appeal.
II. STANDARDS OF REVIEW
The magistrate judge dismissed, for lack of subject matter jurisdiction, the
inmates’ Sixth Amendment and Eighth Amendment claims for state-appointed
counsel. We review dismissals for lack of federal subject matter jurisdiction de
novo. See Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326, 1333-34
(11th Cir. 1999).
The magistrate judge rejected, as a matter of law, the inmates’ Fourteenth
Amendment claims for state-appointed postconviction counsel or some lessor form
of state-provided legal assistance. We review the district court’s conclusions of
2
Although the inmates’ First Amendment claims are not specifically mentioned in the
magistrate judge’s final order, the court recognized that the right of access is multifaceted and
dependent upon various constitutional formulations, including the First Amendment. Thus, the
court’s “access” analysis encompasses the inmates’ First Amendment claims. On appeal, the
inmates’ frame their “access” argument as Fourteenth Amendment claims and we address the claim
in like manner.
4
law de novo. Central State Transit & Leasing Corp. v. Jones Boat Yard, Inc., 206
F.3d 1373, 1376 (11th Cir. 2000).
III. DISCUSSION
A. Fourteenth Amendment Right of Access to the Courts
1. Standing
The inmates contend that they are being denied meaningful access to the
courts, in violation of Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491 (1977),
because the State does not provide them counsel to prepare and present to the
courts their postconviction petitions. The State argues that the inmates lack
standing to assert an access claim because they failed to prove “actual injury” as
required by Lewis v. Casey, 518 U.S. 343, 349-50, 116 S. Ct. 2174, 2179 (1996),
and failed to establish a colorable underlying claim pursuant to Harbury, 536 U.S.
at 414-15, 122 S. Ct. at 2186-87.
It is now clearly established that prisoners have a constitutional right of
access to the courts. Bounds, 430 U.S. at 821, 97 S. Ct. at 1494. In some
instances that right requires States to shoulder affirmative obligations to assure
that indigent prisoners have an adequate opportunity to present their claims fairly.
Id. at 824, 97 S. Ct. at 1496. Accordingly, the Supreme Court has held that the
“right of access to the courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing [them] with
5
adequate law libraries or adequate assistance from persons trained in the law.” Id.
at 828, 97 S. Ct. at 1498. However, in order to assert a claim arising from the
denial of meaningful access to the courts, an inmate must first establish an actual
injury. Lewis, 518 U.S. at 349-50, 116 S. Ct. at 2179.
Actual injury may be established by demonstrating that an inmate’s efforts
to pursue a nonfrivolous claim were frustrated or impeded by a deficiency in the
prison library or in a legal assistance program or by an official’s action. Id. at 351,
116 S. Ct. at 2180; Bass v. Singletary, 143 F.3d 1442, 1445 (11th Cir. 1998). For
instance, an inmate could show actual injury with proof that a court dismissed his
action for failure to comply with a technical requirement unknown to the inmate
due to deficiencies in the prison’s assistance facilities, or that a claim could not be
presented to a court because an inmate was so stymied by the law library’s
inadequacies that he could not prepare a complaint. Lewis, 518 U.S. at 351, 116 S.
Ct. at 2180. At the summary judgment stage, general factual allegations of injury
will not suffice; rather, the plaintiff “must set forth by affidavit or other evidence
specific facts, which for purposes of the summary judgment motion will be taken
to be true.” Id. at 358, 116 S. Ct. at 2183.
6
The primary injury that the inmates allege is the preclusion and dismissal of
potentially meritorious postconviction claims.3 They cite cases in which death-
sentenced inmates’ postconviction petitions were dismissed on procedural or
limitations grounds as proof of actual injury. It is the State’s position that because
the inmates were actually able to file a postconviction petition, even if
subsequently dismissed, the inmates cannot prove actual injury. However, this
argument contravenes Lewis’s instruction that an inmate need only demonstrate
“that a complaint he prepared was dismissed for failure to satisfy some technical
requirement which, because of deficiencies in the prison’s legal assistance
facilities, he could not have known.” Id. at 351, 116 S. Ct. at 2180.
Even if the dismissal of an inmate’s petition on procedural or limitations
grounds could qualify under Lewis as an actual injury, the State maintains that the
inmates have not proven any causal connection between the injury–dismissal of
their postconviction petitions–and the conduct complained of–failure to provide
counsel. However, for purposes of satisfying Article III’s causation requirement,
“we are concerned with something less than the concept of ‘proximate cause.’”
Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1273
3
The inmates also allege that they have suffered prejudice resulting from rushed drafting and
filing of postconviction petitions to meet statute of limitations deadlines. However, the inmates fail
to identify any inmate whose efforts to pursue postconviction relief were hindered as a result of the
time that it took the inmate to find volunteer counsel.
7
(11th Cir. 2003) (citation omitted). “[E]ven harms that flow indirectly from the
action in question can be said to be ‘fairly traceable’ to that action for standing
purposes.” Id. Thus, it is reasonable to conclude that the dismissal of the inmates’
postconviction petitions on procedural or limitations grounds is fairly traceable to
the lack of counsel to adequately and timely prepare their petitions.
Next, the State alleges that the inmates fail to establish that they have
colorable underlying claims because the underlying claims are not identified
within their complaint. The purpose of recognizing an access claim is to provide
vindication for a separate and distinct right to seek judicial relief. Harbury, 536
U.S. at 414-15, 122 S. Ct. at 2186. Therefore, a litigant asserting an access claim
must also prove that he has a colorable underlying claim for which he seeks relief.
Id. at 414-15, 122 S. Ct. at 2186-87. The right is ancillary to the underlying claim.
Id. at 415, 122 S. Ct. at 2186. Thus, the plaintiff must identify within his
complaint, a “‘nonfrivolous,’ ‘arguable’ underlying claim.” Id. at 415, 122 S. Ct.
at 2187 (citation omitted). The complaint identified three forms of postconviction
relief relevant to the inmates’ claims–ineffective assistance of counsel, jury
misconduct, and violations of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963). Unlike Harbury, wherein the trial court and the defendants were left to
guess at the plaintiff’s unstated cause of action, it appears clear from the face of
the inmates’ complaint, the arguments made below, and the district court order,
8
that the inmates’ underlying claims, as listed in the complaint and argued to the
district court, are claims for postconviction relief. Although it is questionable
whether the inmates provided sufficient detail to determine whether their
underlying claims are “arguable” and “nonfrivolous,” the complaint does provide
some evidence of potentially arguable postconviction claims. Assuming arguendo
that the inmates have identified colorable underlying claims, we proceed to
consider the merits of the inmates’ access claims.
2. Right to Postconviction Counsel
The inmates raise two issues that they claim entitle them to state-appointed
counsel prior to filing their postconviction challenges.4 First, the inmates contend
that Alabama’s failure to provide them any form of legal assistance, including
paralegal aid or a public defender to assist in preparing and presenting
postconviction petitions, denies them meaningful access to the courts. Second,
they allege that the difficulty of complying with Alabama’s strict postconviction
pleading requirements, issue-preclusion rules, and statute of limitations deadlines
without counsel denies them meaningful access. The district court held that it was
bound by Hooks v. Wainwright, 775 F.2d 1433 (11th Cir. 1985), and concluded
that, as a matter of law, the right of meaningful access does not require the State to
4
Alabama provides for the appointment of counsel for a petitioner seeking postconviction
relief after the petition is filed, if the petition is not summarily dismissed. See Ala. R. Crim. P.
32.7(c).
9
provide counsel to death-sentenced inmates for the purpose of investigating and
filing postconviction petitions.
In Hooks we invalidated a district court order which required that “any
Florida library plan, devised to ensure constitutional access to the courts by state
inmates, must include a provision for attorney assistance.” Id. at 1438. As in the
present case, the Hooks plaintiffs relied upon Bounds in support of their position
that Florida prisoners were entitled to state-provided counsel for the filing of
collateral suits. Hooks, 775 F.2d at 1434. The Supreme Court in Bounds held that
States must have a constitutionally acceptable method of ensuring indigent
inmates meaningful access to the courts. Bounds, 430 U.S. at 828-32, 97 S. Ct. at
1498-1500. However, after careful review of Bounds, we held that requiring a
state to provide counsel to prisoners for the filing of collateral suits was squarely
contrary to Bounds. Hooks, 775 F.2d at 1435.
We agreed that while Bounds clearly recognized the value that lawyers and
trained paralegals might add to an access program for indigent inmates, Bounds
nonetheless contemplated a legal access program that could meet constitutional
demands without the provision of counsel. Id. Indeed, the Supreme Court in
Bounds explicitly stated that a legal access program need not include any of the
types of legal assistance that it had described, which included law libraries and
assistance from persons trained in the law. Bounds, 430 U.S. at 832, 97 S. Ct. at
10
1500; Hooks, 775 F.2d at 1435. We also found it significant that Bounds referred
to “law libraries or other forms of legal assistance, in the disjunctive, no fewer
than five times.” Hooks, 775 F.2d at 1435. Moreover, we held that Bounds and
other cases preceding it simply removed barriers to court access that imprisonment
or indigency erected. “They in effect tended to place prisoners in the same
position as non-prisoners and indigent prisoners in the same position as non-
indigent prisoners.” Id. at 1436. However, as we observed, the removal of such
barriers caused by imprisonment and indigency “is a far cry from constitutionally
requiring the state to provide legal counsel for the imprisoned.” Id. at 1437.
Since Hooks, this court has consistently held that there is no federal
constitutional right to counsel in postconviction proceedings. Arthur v. Allen, 452
F.3d 1234, 1249 (11th Cir. 2006), modified on reh’g, 459 F.3d 1310 (11th Cir.
2006); Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003); Tower v.
Phillips, 7 F.3d 206, 211 (11th Cir. 1993); Presnell v. Zant, 959 F.2d 1524, 1532
n.6 (11th Cir. 1992). This is so even when the prisoner is under a sentence of
death. Allen, 452 F.3d at 1249. Further, this court has “declined to find an
exception even ‘when the state collateral proceeding was the petitioner’s first
opportunity to raise the claim.’” Id. at 1249-50 (citation omitted). We are
constrained to follow Hooks and its progeny. However, even if we rejected
11
Hooks, we are nonetheless bound by United States Supreme Court precedent,
which precludes us from granting the inmates the relief they seek.
The precise question at issue in this case was decided by the Supreme Court
in Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765 (1989) (plurality opinion).
There, the Court held that death-sentenced inmates have no federal constitutional
right to counsel for purposes of seeking postconviction relief. Id. at 7-12, 109 S.
Ct. at 2768-72. In so holding, the Court relied principally upon its analysis in
Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990 (1987), and Ross v. Moffitt,
417 U.S. 600, 94 S. Ct. 2437 (1974).
The Supreme Court in Ross considered whether the Due Process Clause or
the Equal Protection Clause of the Fourteenth Amendment required the State of
North Carolina to provide indigent inmates counsel to take discretionary appeals.
Ross, 417 U.S. at 610-12, 94 S. Ct. at 2443-45. The Court distinguished the
discretionary appeals process, wherein it is the defendant who generally initiates
the process, from the trial stage of a criminal proceeding, in which the defendant is
haled into court by the State and needs an attorney to challenge the State’s
objective to convert his presumption of innocence to guilt. Id. at 610-11, 94 S. Ct.
at 2444. The difference is significant because, the Court stated, “while no one
would agree that the State may simply dispense with the trial stage of proceedings
without a criminal defendant’s consent, it is clear that the State need not provide
12
any appeal at all.” Id. at 611, 94 S. Ct. at 2444. Further, the Court reasoned that
the Equal Protection Clause does not require a state to duplicate the legal arsenal
that may be privately retained by a criminal defendant. Id. at 616, 94 S. Ct. at
2447. Rather, states need only ensure that the “appellate system be ‘free of
unreasoned distinctions’” and that “indigents have an adequate opportunity to
present their claims fairly.” Id. at 612, 94 S. Ct. at 2444-45 (citations omitted).
Therefore, the Court concluded that the defendant’s access to the trial record,
appellate briefs and opinions provided sufficient means to ensure the pro se
litigant meaningful access to the courts. Id. at 614-15, 94 S. Ct. at 2446.
Because postconviction review is even further removed from the criminal
trial than discretionary review, the Supreme Court in Finley extended its Ross
analysis to postconviction proceedings. See Finley, 481 U.S. at 556-57, 107 S. Ct.
at 1994. In doing so, the Court noted that postconviction proceedings are not a
part of the criminal proceeding itself; rather, these proceedings are considered to
be civil in nature. Id. at 557, 107 S. Ct. at 1994. A postconviction petition is a
“collateral attack that normally occurs only after the defendant has failed to secure
relief through direct review of his conviction.” Id. States have no obligation to
provide postconviction review, and when they do, neither the Due Process Clause
nor the Equal Protection guarantee of meaningful access requires states to provide
indigents legal representation to pursue those claims. Id. Giarratano extended the
13
rule of Finley to include postconviction proceedings initiated by death-sentenced
inmates. Giarratano, 492 U.S. at 10, 109 S. Ct. at 2770-71. Thus, Giarratano
established that death-sentenced inmates have no federal constitutional right to
postconviction counsel.
The inmates argue that Giarratano does not preclude the relief that they
seek for two reasons. First, they contend Giarratano was only a plurality decision.
Plurality opinions are not binding on this court; however, they are persuasive
authority. Horton v. Zant, 941 F.2d 1449, 1464 n.32 (11th Cir. 1991). The
Supreme Court’s holding in Giarratano “precludes lower courts from reaching
results at odds with a narrow reading of the question before the [C]ourt.” Id.
Nonetheless, even assuming that Giarratano is inapplicable to their claims, the
inmates ignore the significance of pre-Giarratano and post-Giarratano cases.
Both Ross and Finley clearly illustrate the Supreme Court’s reluctance to find a
Due Process or Equal Protection right to counsel once the direct appeals process is
completed. Two years after Giarratano, a majority of the Court in McCleskey v.
Zant, reiterated its conclusion in Finley that “the right to appointed counsel
extends to the first appeal of right, and no further.” 499 U.S. 467, 495, 111 S. Ct.
1454, 1471 (1991) (citing Finley, 481 U.S. at 555, 107 S. Ct. at 1993). Finally, if
the validity of Giarratano was still uncertain after McCleskey, Coleman v.
Thompson, 501 U.S. 722, 755, 111 S. Ct. 2546, 2567 (1991), left no doubt that
14
there is no federal constitutional right to postconviction counsel. In Coleman, a
majority of the Court explicitly stated that “Finley and Giarratano established that
there is no right to counsel in state collateral proceedings.” Id. The McCleskey
and Coleman petitioners were both death-sentenced inmates; thus, there is no
question that the rule of Finley applies equally to death-sentenced inmates.
Second, the inmates argue that Giarratano is distinguishable from the
present case because Virginia’s postconviction proceedings at the time the
Supreme Court decided Giarratano were notably different than current Alabama
postconviction proceedings. Specifically, the inmates allege that while no death-
sentenced inmate had gone through postconviction proceedings without counsel in
Virginia, seven Alabama death-sentenced inmates have recently gone through
postconviction proceedings without a lawyer. Further, the inmates point to recent
legal developments, including the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, which reduced the federal habeas statute of limitations from
two years to only one year, 28 U.S.C. § 2244(d)(1), and restricted the scope of
review in federal habeas, 28 U.S.C. § 2254(d), and the statute of limitations for
filing postconviction petitions in Alabama (also recently reduced from two years
to only one year), Ala. R. Crim. P. 32.2(c).
Giarratano, however, established a categorical rule that there is no federal
constitutional right to postconviction counsel. 492 U.S. at 11-12, 109 S. Ct. at
15
2771. The Supreme Court in Giarratano made clear its dissatisfaction with a
case-by-case approach to determining whether such a right exists. Id. “Our cases
involving the right to counsel have never taken this tack; they have been
categorical holdings as to what the Constitution requires with respect to a
particular stage of a criminal proceeding in general.” Id. at 12, 109 S. Ct. at 2771.
Treating the question as if it were based upon a court’s factual findings, the Court
held, “would permit a different constitutional rule to apply in a different State if
the district judge hearing that claim reached different conclusions.” Id.
In sum, Finley, Giarratano, and Coleman clearly establish that death-
sentenced inmates have no federal constitutional right to postconviction counsel.
Therefore, the inmates are not entitled to relief on this claim.
3. Right to a Lesser Form or Alternative Form of Legal Assistance
The inmates argue, in the alternative, if they have no federal constitutional
right to counsel for the preparation and presentation of their postconviction claims,
the right of access to the courts nonetheless entitles them to some lessor form of
legal assistance. However, the inmates have not identified within their complaint
or briefs to this court the lessor form of legal assistance to which they are entitled.
The magistrate judge concluded that this claim is the type of deficient “protean”
claim foreclosed by Harbury. The magistrate judge held that the inmates failed to
16
identify any existing claim which they lost or the presentation of which was
hindered within the meaning of Lewis.
The inmates’ failure to identify a lessor form of legal assistance is fatal to
their claim. Essentially, the argument is similar to their “right to counsel”
claim–systemic action frustrates the inmates’ ability to investigate, prepare, and
file their postconviction petitions. The inmates distinguish their claims from the
backward-looking “protean” allegations raised by the plaintiff in Harbury. They
allege that their claims are forward-looking, and as such, they need only identify a
“‘nonfrivolous,’ ‘arguable’ underlying claim.’” See Harbury, 536 U.S. at 415, 122
S. Ct. at 2187 (citation omitted). However, it is the articulation of the access claim
itself with which we are concerned. In essence, it is the State’s failure to provide
this “lessor form of legal assistance” that frustrates the inmates’ ability to
investigate, prepare, and file their claims. It follows that, in order to determine
whether the inmates have alleged a valid access claim, we must determine whether
the lack of this “lessor form of legal assistance” denied the inmates meaningful
access to the courts. We cannot do so unless the inmates identify the “lessor form
of legal assistance” to which they claim they are entitled. Therefore, the inmates
are not entitled to relief on this claim.
B. Sixth and Eighth Amendment Right To Postconviction Counsel
17
The inmates also contend that they have a Sixth and Eighth Amendment
right to state-appointed counsel for the preparation and presentation of their
postconviction claims. They allege that Sixth and Eighth Amendment
requirements evolve as times change. According to the inmates, empirical
evidence has emerged since Giarratano that erodes the Supreme Court’s premise
that trial and direct appeal proceedings are sufficient to ensure the reliability of
capital sentences. Given the number of death sentences that have recently been
reversed in appellate and postconviction proceedings,5 the inmates claim that state
postconviction proceedings are as essential in ensuring the reliability of an
inmate’s conviction as the inmate’s direct appeal. However, neither the Sixth
Amendment nor the Eighth Amendment affords the inmates the relief that they
seek.
The Sixth Amendment applies only to criminal proceedings. See Wolff v.
McDonnell, 418 U.S. 539, 576, 94 S. Ct. 2963, 2984 (1974); see also Giarratano,
492 U.S. at 7, 109 S. Ct. at 2769. As stated earlier, postconviction relief is not
part of the criminal proceeding itself; rather, it civil in nature. Finley, 481 U.S. at
556-57, 107 S. Ct. at 1994. It is a collateral attack that normally occurs only after
5
The inmates claim that between 1973 and 1995, 68% of death sentences obtained in state trial
courts were reversed in appellate and postconviction proceedings. According to the inmates, state
postconviction courts invalidated death sentences in 10% of the cases they considered. We express
no opinion regarding whether these statistics are accurate.
18
the direct appeals process is completed and the defendant’s conviction has become
final. Id. at 557, 107 S. Ct. at 1994. Thus, the Sixth Amendment has no
application to the inmates’ claims for postconviction counsel. See Giarratano,
492 U.S. at 7-8, 109 S. Ct. at 2769; Finley, 481 U.S. at 555-57, 107 S. Ct. at 1993-
94; see also Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004) (“[T]he Sixth
Amendment only applies to a defendant’s trial and first appeal as of right, not to
appeals afforded on a discretionary basis, collateral proceedings, or civil
proceedings such as civil rights claims challenging prison conditions.”); Williams
v. Lockhart, 849 F.2d 1134, 1139 (8th Cir. 1988) (“[T]he Sixth Amendment right to
effective assistance of counsel does not attach to post conviction proceedings
because they are civil in nature.”).
As to the inmates’ Eighth Amendment claims, the Supreme Court in
Giarratano explicitly held that death-sentenced inmates have no Eighth
Amendment right to state-provided legal counsel. 492 U.S. at 8-10, 109 S. Ct. at
2769-71. Recognizing that the Constitution placed special constraints on the
procedures used to convict an accused of a capital offense, the Court explained
that those constraints have all related to the trial stage of capital adjudication,
“where the court and jury hear testimony, receive evidence, and decide the
questions of guilt and punishment.” Id. at 8-9, 109 S. Ct. at 2769-70. Heightened
procedural requirements do not apply in the context of postconviction
19
proceedings. Giarratano, 492 U.S. at 10, 109 S. Ct. at 2770. This is because state
collateral proceedings are not intended to assure the reliability of the criminal
process. Rather, it is the trial stage of a capital case that assures the reliability of
the process by which the death penalty is imposed. Id.; See also Coleman, 501
U.S. at 750, 111 S. Ct. at 2565 (applying the general requirement of cause and
prejudice in a capital case); Satterwhite v. Texas, 486 U.S. 249, 256-58, 108 S. Ct.
1792, 1797-98 (1988) (declining to create a death penalty exception to the
harmless error standard of appellate review); Smith v. Murray, 477 U.S. 527, 538,
106 S. Ct. 2661, 2668 (1986) (rejecting claim that the principles governing
procedural default apply differently depending on the nature of the penalty
imposed for violation of criminal law); Pulley v. Harris, 465 U.S. 37, 46-51, 104
S. Ct. 871, 877-79 (1984) (declining to hold that the Eighth Amendment required
proportionality review of death sentences).
Neither the Supreme Court nor our sister circuits have withdrawn from this
view since Giarratano. Indeed, four years after Giarratano, in Herrera v. Collins,
506 U.S. 390, 400-05, 113 S. Ct. 853, 860-63 (1993), the Court held that claims of
actual innocence based on newly discovered evidence are not grounds for habeas
relief, even in a capital case, absent an independent constitutional violation.
Recognizing that the Eighth Amendment required increased reliability of the
process by which capital punishment is imposed—the trial and sentencing
20
proceedings—the Court declined to require a different standard of review on
habeas corpus for the death-sentenced petitioner. Id. at 405, 113 S. Ct. at 863.
More recently in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 281, 118
S. Ct. 1244, 1250 (1998) (plurality opinion as to Part II), the Supreme Court
reiterated that distinctions accorded a life interest are primarily relevant to trial,
and noted that it had generally rejected attempts to expand any distinctions
further.6 The Court also cited approvingly Justice Powell’s concurrence in Ford v.
Wainwright, 477 U.S. 399, 425, 106 S. Ct. 2595, 2610 (1986), in which Justice
Powell noted that the Court’s decisions imposing heightened requirements on
capital trials and sentencing proceedings do not apply in the postconviction
context. Woodard, 523 U.S. at 281-282, 118 S. Ct. at 1250. See also Rouse v.
Lee, 339 F.3d 238, 254 (4th Cir. 2003) (“While it is undeniable that the Supreme
Court has treated death differently, any distinctions between the procedures
required in capital and noncapital cases ‘are primarily relevant to trial,’ and the
Supreme Court ‘has generally rejected attempts to expand any [such] distinctions
further.’”) (citations omitted). Therefore, we conclude that the inmates have no
Sixth Amendment or Eighth Amendment right to postconviction counsel.
C. 28 U.S.C. § 2244(d)(1)(B)
6
Although this portion of the opinion is a plurality decision and not binding on this court, as
previously noted, it is persuasive. See Zant, 941 F.2d at 1464 n.32.
21
The inmates also argue that Alabama’s failure to provide them with legal
counsel or other legal assistance for purposes of filing and presenting
postconviction petitions constitutes an unconstitutional impediment to their filing
for federal habeas relief within the meaning of 28 U.S.C. § 2244(d)(1)(B). The
district court pretermitted this question in light of its holding that there is no
federal constitutional right to postconviction counsel. Therefore, this issue is not
properly before us. However, if it were, the analysis above would preclude us
from granting relief on this claim. Moreover, the Supreme Court’s holding in Ross
would likely preclude this claim as well. 417 U.S. at 617-18, 94 S. Ct. at 2447
(declining to find a Fourteenth Amendment duty upon states to provide counsel to
indigent defendants seeking review of a conviction in federal court simply because
the state had initiated criminal proceedings against the indigent). Therefore, we
conclude that the inmates are not entitled to relief on this claim.
IV. CONCLUSION
As the magistrate judge recognized, we too recognize the logic in the
argument that there simply are not enough volunteer lawyers willing to undertake
a full review and investigation of a case in order to initiate postconviction
proceedings on behalf of a death-sentenced inmate. If we lived in a perfect world,
which we do not, we would like to see the inmates obtain the relief they seek in
this case. However, we are bound by United States Supreme Court precedent, as
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well as our own precedent, which clearly establish that the United States
Constitution does not afford appointed counsel on collateral review. For these
reasons, we affirm the district court’s judgment of dismissal and hold that the
inmates have no federal constitutional right to counsel for the preparation and
presentation of postconviction petitions.
AFFIRMED.
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