Hutchinson v. Florida

[PUBL1SI~1]
IN THE UNITED STATES COURT OF APPEALS
F1LE1)
FOR THE ELEVENTH CIRCUIT U.S. COURT OF
~ APPEALS
ELEVENTH CIRCUIT
APRlL l9, 2012
NO. _]OHN LEY
D.C. D0cket N0. 5:09-cv-00261-RS
JEFFREY GLENN HUTCHINSON,
versus
STATE OF FLORIDA,
Petiti0ner - Appellant,
Resp0ndent - Appe1lee.
Appeal from the United States District C0urt
for the N0rthern District of F10rida
Bef0re EDMONDSON,
CARNES, Circuit Judge
(April 19, 2012)
CARNES, and BARKETT, Circuit Judges.

This is another federal habeas statute of limitations case, involving another
equitable tolling issue. See generally 28 U.S.C. § 2244(d); Holland v. Florida,
U.S. _, 130 S.Ct. 2549 (2010). Jeffrey G. Hutchinson was convicted of four
counts of first degree murder for shotgunning to death his girlfriend, Renee
Flaherty, and her three children: nine-year-old Geoffrey, seven-year-old Amanda,
and four-year-old Logan. Hutchinson v. State, 882 So. 2d 943, 948-49 (F1a. 2004)
abrogated by Deparvine v. State, 995 So. 2d 351 (Fla. 2008). He was sentenced to
life imprisonment for the murder of Renee Flaherty and to death for the murder of
each child. I_d. at 949. His convictions and sentences were affirmed on direct
appeal. id at 96l. After an evidentiary hearing state collateral relief was~denied,
and that denial was affirmed by the Florida Supreme Court. Hutchinson v. State,
17 So. 3d 696, 702-04 (F1a. 2009).
'1`he district court dismissed Hutchinson’s 28 U.S.C. § 2254 petition for
federal habeas relief because it was not filed until July 24, 2009, which was three
years, nine months, and twenty-four days (or 1,3 93 days) after the one-year statute
of limitations contained in § 2244(d) had run on September 30, 2005 . Hutchinson
v. Florida, No. 5:O9-CV-261-RS, 2010 WL 383392l (N.D. Fla. Sept. 28, 2010).
This is Hutchinson’s appeal from that dismissa1.
2

Under § 2244(d)(1)(A) the one-year period for filing a federal habeas
petition starts rtmning on the date "on which the [state court] judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review." But § 2244(d)(2) provides that "[t]he time during which a properly
filed application for State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be counted." In order for that
§ 2244(d)(2) statutory tolling to apply, the petitioner must file his state collateral
petition before the one-year period for filing his federal habeas petition has run.
McCloud v. Hooks, 560 F.3d l223, 1227 (l 1th Cir. 2009); Alexander v. Sec’y,
Dep’t of Corr., 523 F.3d 1291, 1294 (1 1th Cir. 2008) abrogated on other grounds
by Wall v. Kholi, U.S. g, 131 S.Ct. 1278 (201l); see also Hunter v. Ferrell,
587 F.3d 1304, 1308 n.3 (l lth Cir. 2009). Hutchinson’s state collateral petition
was not filed until October 20, 2005, which was twenty days after the entire one-
year period for filing the federal petition had run on September 30, 2005, and as a
result none of the limitations period for filing his federal petition was left to be
tolled. From that point on Hutchinson’s hopes for relief were riding all or nothing
on his state collateral petition, and the result came up nothing when the Florida
Supreme Court affirmed the denial of collateral relief §§ Hutchinson, 17 So. 3d
at 702-04.
3

Hutchinson recognizes both that his federal habeas petition should have
been filed by September 30, 2005, and that because his state collateral petition was
not filed until October 20, 2005, he cannot claim statutory tolling under §
2244(d)(2) for any of the time that his state collateral proceeding was ongoing.
His sole contention is that he is entitled to equitable tolling. See generally
, 130 S.Ct. 2549. Equitable tolling is, Well, equitable in nature, and
decisions regarding it must be made-"on a case-by-case basis" in light of "specific
circumstances, often hard to predict in advance," although we "can and do draw
upon decisions made in other similar cases for guidance." I_d. at 2563 (quotation
marks omitted). We tum now to the specific facts and circumstances of this case
as well as to the decisions in similar cases for guidance.
The parties agree that the problem in this case arose because the attorneys
who filed Hutchinson’s state collateral petition misunderstood the date on which
the limitations period began to run at the end of the direct appeal process and, as a
result, they miscalculated the filing deadline. Because no petition for writ of
certiorari was filed in the United States Supreme Court as part of the direct appeal,
the time for filing the federal habeas petition started running upon "the expiration
of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Hutchinson’s
attorneys understood that, but they misunderstood when the time for seeking
4

certiorari review of a state court’s judgment expired. They thought that the time
for doing so expired ninety days after the Florida Supreme Court issued its
mandate on July 22, 2004. gee App. A 11 2. Instead, the time actually expired
ninety days after the issuance of the Florida Supreme Court’s judgment (the
opinion was the judgment), which had happened twenty-one days earlier on July 1,
2004. § Sup. Ct. R. l3.3 ("The time to file a petition for a writ of certiorari runs
from the date of entry of the judgment or order sought to be reviewed, and not
from the issuance date of the mandate (or its equivalent under local practice).").
As a result of that misunderstanding Hutchinson’s attorneys miscalculated
the deadline by which they were required to file either Hutchinson’s federal
habeas petition or file his state collateral petition in time to statutorily toll the
federal limitations period. They believed that they had until October 20, 2005,
instead of September 30, 2005, which was the actual deadline.' Because they filed
Hutchinson’s state collateral petition on October 20, 2005, the § 2244(d)(2) tolling
provision did not kick in and when Hutchinson finally filed his federal habeas
petition on July 24, 2009, it was three-and-three-quarters years too late.
'By our calculations, the actual deadline should have been September 29, 2005, because
that is one year after September 29, 2004, the date on which the judgment of the state court
became final under § 2244(d)(1)(A). For some reason, the district court said and the parties say
that the deadline was September 30, 2005, Because the difference makes no difference we will
use the September 30, 2005 date, too.
5

A petitioner has the burden of establishing his right_if "right" is not too
strong a word in the area of equity_to equitable tolling. He must plead or proffer
enough facts that, if true, would justify an evidentiary hearing on the issue.
Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d l057, 1060 (11th Cir. 2011). And
the allegations supporting equitable tolling must be specific and not conclusory.
I_d. at 106l. The Supreme Cotu't did say in id that although equitable relief
is flexible and all the facts and circLunstances must be considered, we should
"draw upon decisions made in other similar cases for guidance." , 130
S.Ct. at 25 63. We take that statement to mean this is not an area free of rules of
law, govemed entirely by the chancellor’s foot, but we are instead bound by
precedent to the extent that there is precedent.2
2And it is a good thing that rules of precedent apply here. Even Blackstone, who was
something of a fan of equity, warned that:
[T]he liberty of considering all cases in an equitable light, must not be indulged too far;
lest thereby we destroy all law, and leave the decision of every question entirely in the
breast of the judge. And law, without equity, though hard and disagreeable, is much more
desirable for the public good, than equity without law: which would make every judge a
legislator, and introduce most infinite confusion; as there would then be almost as many
different rules of action laid down in our courts, as there are differences of capacity and
sentiment in the human mind.
1 William Blackstone, Commentaries *62; see also 1 Joseph Story, Commentaries on Eguity
Jurisprudence § 19, at 16 (l3th ed. 1886) ("If indeed, a Court of Equity in England did possess
the unbounded jurisdiction which has been thus generally ascribed to it . . . it would be the most
gigantic in its sway, and the most formidable instrument of arbitrary poWer, that could well be
devised.").
6

Binding precedent has laid down two requirements that a federal habeas
petitioner must meet before a court can grant him equitable tolling of the §
2244(d) statute of limitations. In the Supreme Court’s words: "[A] petitioner is
entitled to equitable tolling only if he shows (l) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way."
, 130 S.Ct. at 2562 (quotation marks omitted); Lawrence v. Florida, 549
U.S. 327, 336, 127 S.Ct. 1079, 1085 (2007); Well, 647 F.3d at l066,
l068. The Supreme Court has also instructed us that "a garden variety claim of
excusable neglect such as a simple miscalculation that leads a lawyer to miss a
filing deadline does not warrant equitable tolling." , 130 S.Ct. at 2564
(citation and quotation marks omitted); Lawrence, 549 U.S. at 336-37, 127 S.Ct.
at 1085 ("Attorney miscalculation is simply not sufficient to warrant equitable
tolling, particularly in the postconviction context where prisoners have no
constitutional right to counsel."); g:llso Qa\@, 647 F.3d at l066.
This case involves, in _1-lc_)1lLd’s language, "a garden variety claim of
excusable neglect," arising from "a simple miscalculation that leads a lawyer to
miss a filing deadline." § , 130 S.Ct. at 2564 (quotation marks omitted).
The attorneys who filed the state collateral petition for Hutchinson misunderstood
7

what § 2244(d)(1)(A)’s "expiration of the time for seeking such review" meant
when read against Supreme Court Rule 13.3. The fact that they ought to have
known better does notjustify equitable tolling.3 The attorneys who miscalculated
the deadline for filing in the Lawrence case did so because they were not aware of
well-settled law that should have prevented any confusion on their part. §
Lawrence, 549 U.S. at 336-37, 127 S.Ct. at 1085. Yet, the Supreme Court still
held that equitable tolling was not justified in that case because "[a]ttomey
miscalculation is simply not sufficient to warrant equitable tolling." Lr.L at 336,
127 S.Ct. at 1085. If attomey miscalculation, error, or negligence were enough for
equitable tolling, the § 2244(d) statute of limitations would be tolled to the brink
of extinction because in practically every case where there is a failure to meet the
3Any implicit criticism by us of Hutchinson’s attorneys for their mistake is tempered by
awareness that a panel of this Court made exactly the same mistake a year-and-a-half before
those two attomeys did. The opinion in Diaz v. Secretary for the Department of Corrections, 362
F.3d 698 (1 1th Cir. 2004), states that "[t]he 90-day period in which Diaz could have filed a
petition in the United States Supreme Co1n't expired on June 19, l997, at which time the clock
began to run on the one-year limitation for the filing of habeas petitions." § at 699. The
opinion in that case shows, however, that June l9, 1997 was 90 days after the state appellate
court’s mandate had issued and not 90 days after its opinion had issued, which was 16 days
earlier. § § We do not know if the 1 opinion confused Hutchinson’s counsel or if they
were even aware of it. What we do know is that no one is perfect; we all make mistakes
8

filing deadline an attorney is at fault. § Chavez, 647 F.3d at 1071 ("In virtually
every case where the issue of equitable tolling comes up one or more attorneys
should have acted with more dispatch, but more than that is required.").
Hutchinson argues that more is involved here than simple attomey error or
miscalculation, The "more" that he contends is involved is set out in the affidavit
that he filed in the district court in response to the motion to dismiss his federal
habeas petition as untimely. (That affidavit is reproduced in full as Appendix A to
this opinion.) In his affidavit, Hutchinson states that he repeatedly expressed to
the two attorneys who were representing him his concern about the statute of
limitations, and on September 22, 2005 he told them "point blank and in no
uncertain terms to ‘either file my rule 3.85l motion immediately or 1 will
discharge you and file it myself."’ App. A 11 15. On that occasion, Hutchinson
recounts, both attomeys promised him that they "would file the motion on or §
before September 28, 2005, though they went on to say that we had 90 days after
the mandate was issued by the Florida Supreme Court, so the rule 3.85l motion
was not actually due until ‘October 20th."’ id According to Hutchinson, he again
told his two attorneys that if they did not file the Rule 3.85l motion "immediately"
he would file it himself because he knew that was "the only way [he] could
prevent the one-year limitations period from expiring on [his] 2254 petition." I_cl.
9

The attorneys "guaranteed" him that they would file the state court motion "no
later than September 28, 2005." I_d. But they did not do that. Instead, they filed
the state court motion on October 20, 2005."
Hutchinson alleges that but for his attomeys’ promise to file by September
28, 2005 he "would have discharged them and filed a pro se rule 3.85l motion to
prevent 28 U.S.C. § 225 5(d)(l)’s [sic] one-year limitations period from expiring."
App. A 11 16. He attached to his affidavit "facsimiles of the Notice of Pro Se
Status and Rule 3.85l Motion that [he] would have filed on September 23, 2005,
but for [the attomeys’] promise." Ld. Those two facsimiles are each dated
September 23, 2005 and signed by Hutchinson, indicating that he was ready,
willing, and able to file his motion to proceed go § and his Rule 3.85l motion
on or soon after that date and would have done so but for his attorneys’ promises,
4In his affidavit Hutchinson states that before the statute of limitations ran he met with
attomey Brody three times, App. A 1111 7, 10, l2, with attomey Hazen four times, i_d_. 1111 6, 8, 11,
13, and with both of them on two other occasions, ic_l_. 1111 l4, l5. He states that dining one of his
meetings with Brody alone, more than five months before the limitations period ran, Brody was
"visibly disoriented and smelled strongly of alcohol," § 11 l2, and during another meeting two-
and-a-half months before the limitations period ran Brody was "sweating profusely and smelled
of alcohol," § 11 l4. Hutchinson also says that on that later occasion Hazen told him that Brody
was "just having a lot of personal problems." § But there is no allegation that Brody’s
impairrnent, if any, caused the error in miscalculating the due date. § Chavez, 647 F.3d at
1071 (holding that equitable tolling was not appropriate where "[t]here are . . . no allegations at
all that [state post-conviction counsel’s] health had affected his ability to handle the case up to
the time he withdrew or that it had prevented him from filing the motion for state post-conviction
relief sooner"). Nor has Hutchinson alleged that attomey Hazen, who actually signed and filed
the Rule 3.85l motion in state coLu't on October 20, 2005, was ever impaired in any way.
10

which were not kept.5
Hutchinson knew, at least by October l9, 2005, that his attorneys had not
filed his state Rule 3.85l motion by the September 30, 2005 deadline (or the
September 28, 2005 deadline, as he had calculated it). We know that Hutchinson
knew that because October l9, 2005 is the date Hutchinson signed, under penalty
of perjury, the verification on the Rule 3.85l motion (which one of the attorneys
filed in state court the next day).° Just twenty-seven days earlier he had told his
two attorneys that filing the Rule 3.85l motion in state court by September 28,
2005 was necessary to prevent the federal filing deadline from expiring. §§ App.
5Hutchinson’s affidavit also states that on three occasions, the last of which was July 14,
2005, he asked his attorneys to file a "shell-brief" in state court in order to prevent the time from
rtu1ning while they investigated his case and prepared the real motion for state collateral relief
App. A 1111 ll, l3, l4. But attomey Hazen told him then that a state court "shell brief didn’t
provide the protection that it used to." Ld. 11 ll. lt appears that Hazen was correct about that.
The respondent’s brief in this case informs us that in 2001 Florida’s Rule 3.85 1 was amended to
prohibit the filing of shell motions, g Fla. R. Crim. P. 3.851(e)(1)(D), Gonzalez v. State, 990
So. 2d l0l7, 1034 & n.9 (Fla. 2008), and that shell motions are stricken by the Florida co1u'ts and
no longer can be used to meet filing deadlines. In his reply brief, Hutchinson does not take issue
with any of that information.
°Although Hutchinson’s affidavit and the date of his signature on the federal habeas
petition establish beyond dispute that he knew his attorneys had missed the deadline for filing his
state petition, our separately writing colleague asserts that Hutchinson had no reason to file his
federal habeas petition until nearly four years later because he relied on his attomeys’ assurances
that they were doing what was necessary to protect his federal habeas rights. § Concurring Op.
at 25-26. That assertion is belied by Hutchinson’s own sworn statements, which establish that
he knew his attomeys had missed the deadline, yet for years after realizing that he still made no
attempt to file in federal co1u't the collateral petition he had already drafted. However judges may
feel about the law applicable to this or any other area, we have no license to rewrite the facts of a
case.
ll

A 1[ 15. And Hutchinson had already drafted, dated, and had ready to file a
complete petition setting out all of the claims that he wanted to raise. I_c1_. 111
15-l6. By simply changing the name of the court in which that petition was to be
filed, Hutchinson himself could have filed his federal habeas petition on or soon
after October 20, 2005, which would have been just twenty days after the
expiration of the one-year limitations period.7
Yet Hutchinson did nothing of the sort for nearly four years. He did not file
his jig § habeas petition in federal court until July 24, 2009, which was long after
the state trial court had denied his Rule 3.85l motion on January 3, 2008, and was
also after the Florida Supreme Court had affirmed that denial on July 9, 2009.
7Had Hutchinson done so, the federal district court could have held his federal habeas
petition in abeyance until his efforts to secure state collateral relief were completed. § Rhines
v. Weber, 544 U.S. 269, 278-79, 125 S.Ct. l528, 1535 (2005). Our colleague’s suggestion that a
district court might dismiss such a petition without abusing its discretion is contradicted by the
only authority she cites for that proposition, which is the Rhines decision. § Concurring Op. at
26 n.2l. The Supreme Court stated in Rhines that:
[I]t likely would be an abuse of discretion for a district court to deny a stay and to
dismiss a mixed petition if the petitioner had good cause for his failure to exhaust,
his unexhausted claims are potentially meritorious, and there is no indication that
the petitioner engaged in intentionally dilatory litigation tactics. ln such
circumstances, the district co1u't should stay, rather than dismiss, the mixed
petition § Ltmdy, 455 U.S., at 522, 102 S.Ct. 1198 (the total exhaustion
requirement was not intended to "unreasonably impair the prisoner’s right to
relief’). ln such a case, the petitioner’s interest in obtaining federal review of his
claims outweighs the competing interests in finality and speedy resolution of
federal petitions.
Rhines, 544 U.S. at 278, 125 S.Ct. at l535.
12

More to the point, Hutchinson waited to file his federal petition for three years,
nine months and five days-a total of l,3 74 days_after he learned on October l9,
2005 that his attomeys had missed the deadline for a filing in state court that
would have tolled the federal limitations period. There is nothing in Hutchinson’s
affidavit or in his briefs to explain his delay of nearly four years. Nothing.
We need not decide whether Hutchinson has established that an
extraordinary circumstance stood in the way of his meeting the § 2244(d) filing
deadline, because he has not carried his burden of showing that he pursued his
rights diligently. § , 130 S.Ct. at 2562; Lawrence, 549 U.S. at 336, 127
S.Ct. at 1085; se_ealL 1 647 F.3d at l066, l068. Although Hutchinson’s
affidavit may show that he diligently attempted to have his state collateral motion
filed in time to give him the benefit of § 2244(d) statutory tolling, it does not show
that once that opportunity was missed he pursued his federal rights diligently.
Instead, his affidavit and the other materials he has submitted show that he had in
hand a petition that he could have re-labeled and filed ry § in federal court
within three weeks after the one-year limitations period ran, but he waited three-
and-three-quarter years before he filed a § § federal habeas petition. That is not
reasonable diligence
Hutchinson’s lengthy delay in filing his go se federal habeas petition stands
13

in stark contrast to the petitioner’s diligence in the §§ case, The Supreme
Court stressed that "the very day that Holland discovered that his AEDPA clock
had expired due to [his attomey’s] failings, Holland prepared his own habeas
petition § § and promptly filed it with the District Court." , 130 S.Ct. at
2565 (emphasis in original). Holland’s filing of his federal habeas petition the day
after he leamed that "his AEDPA clock had'expired due to [his attorney’s]
failings" may be "maximum feasible diligence," §, which is not required.
But Hutchinson’s failure to do anything to get his federal habeas petition filed for
nearly four years after he learned that the AEDPA clock had run out due to his
attomeys’ miscalculation is not even "reasonable diligence," which is required, §
The district court did not err in concluding that Hutchinson was not entitled
to equitable tolling of l,393 days.
AFFIRMED.
l 4

BARKETT, Circuit Judge, concurring in the result only:
Initially, 1 disagree with the majority’s holding that Hutchinson was not
reasonably diligent in pursuing his claims. He did everything any reasonable
client would do to assure that his lawyers protected his interests, including
imploring his lawyers to file his post-conviction pleadings in a timely marmer.
The majority’s suggestion that Hutchinson should have filed a placeholder pro se
habeas petition is simply not logical when Hutchinson was represented by lawyers
who were assuring him that his claims were being pursued.
However, no matter how diligent Hutchinson was or could have been, as the
law stands today, this Court still could not grant Hutchinson the relief of equitable
tolling because the Supreme Court has held that, notwithstanding his diligence, a
defendant is responsible for and must bear the consequences of his lawyer’s
negligence.' §ge Lawrence, 549 U.S. at 336-37; Coleman v. Thompson, 501 U.S.
722, 753-54 (l991); see also Martinez v. Ryan, 566 U.S. 1 , 1 (20l2) (slip
op., at 7); Holland, 130 S. Ct. at 2563.
The holdings of Lawrence and Coleman are premised on the continued
' In order to merit equitable tolling, a petitioner must establish "(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."
Holland v. Florida, 560 U.S. § _,130 S. Ct. 2549, 2562 (2010) (intemal quotation marks
omitted). A lawyer’s negligence does not constitute an "extraordinary circLunstance." See id. at
2564 (citing Lawrence v. Florida, 549 U.S. 327, 336 (2007)). Here, where Hutchinson’s lawyers
negligently filed his state post-conviction petition too late to statutorily toll the federal habeas
filing deadline, their negligence does not constitute an "extraordinary circi.unstance."

application to death row imnates of the agency theory of the lawyer-client
relationship. See, e.g,, Maples v. Thomas, 565 U.S. _, __, 132 S. Ct. 912, 922
(2012) (explaining that Coleman’s holding was based on "well-settled principles
of agency law" that "the principal bears the risk of negligent conduct on the part of
his agent."). However, as amplified below, none of the key assumptions
underlying the application of an agency relationship to a death-sentenced client
and his lawyer are valid in the post-conviction context.2 When the law already
recognizes equitable exceptions to holding a client responsible for his lawyer’s
actions under circumstances with less drastic consequences, an exception should
also be made for death row imnates so that their lawyer’s negligence does not
preclude federal review of constitutional claims.
I. Agency Principles and Death Row Inmates
An agency relationship exists to permit one person to act on behalf of
another.3 Generally the principal chooses an agent to act on his behalf for a
2 § Adam Liptak, Foreword, Agency and Equity: Why do we blame clients for their
laLryers’ mistakes?, 110 Mich. L. R. 875, 875 (2012) (stating that "clients and lawyers fit the
agency model imperfectly. Agency law is built on the concepts of free choice, consent, and
loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these
elements are missing.").
3 § 1 Floyd R. Mechem Treatise on the Law of Agency § 80 (2d ed. 1914) ("It is the
general rule that an agency may be created for the performance of any lawful act, and that
whatever a person may lawfully do, if acting in his own right and in his own behalf, he may
lawfully delegate to an agent."). ~
16

specific purpose,4 and in a traditional lawyer-client relationship, a client hires a
lawyer to represent him in a discrete legal matter. The legitimacy of transferring
responsibility for the lawyer’s negligence from the lawyer to the client is based on
several assumptions that underpin the agency relationship. First, it is assumed that
the client voluntarily chooses his lawyer for competence, diligence, and loyalty.5
~
Second, it is assumed that the client has the ability to direct the actions of the
lawyer° or, at the very least, that constant and adequate opportunities exist for
communication between the client and his lawyer.7 1
But these assumptions do not apply to inmates on death row, almost all of
whom do not choose their lawyers. Instead they must depend on appointed or pro
bono volunteer counsel who too often lack expertise in post-conviction death
penalty representation. See, e.g., @pl_es, 132 S. Ct. at 918. Consequ'ently, the
representation provided in state and federal post-conviction proceedings is too
4 § Restatement (Second) of Agency § 1 (l958) ("Agency is the fiduciary relation
which results from the manifestation of consent by one person to another that the other shall act
on his behalf and subject to his control, and consent by the other so to act.").
5 § Model Rules of Prof’l Conduct R. l.l, l.3 (2009).
6 1 R. l.2(a).
7 _S§§ R. 1.4.
17

often inadequate.8 For example, former Florida Supreme Court Justice Raul
Cantero stated that "some of the [appointed] counsel have little or no experience in
death penalty cases. They have not raised the right issues . . . [and] [s]ometimes
they raise too many issues and still haven’t raised the right ones."9 Florida
Supreme Court Justice Barbara Pariente has also stated that "[a]s for [appointed]
counsel, we have observed deficiencies and we would definitely endorse the need
for increased standards for [appointed] counsel, as well as a continuing system of
8 § Jordan M. Steiker, Improving Representation in Capital Cases: Establishing the
Right Baselines in Federal Habeas to Promote Structural Reform Within States, 34 Am. J. Crim.
L. 293, 297-300 (2007) (discussing the "crisis" in the quality of representation in both the trial
and post-conviction stages of capital cases); see also J on B. Gold & Lisa Greemnan, Update on
the Cost and Quality of Defense Representation in Federal Death Penalty Cases 87-88 (20l0)
(discussing repercussions of inadequate representation in federal habeas context); American Bar
Association, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Alabama
Death Penalty Assessment Report 97 (Jtme 2006) ("Although anecdotes about inadequate
defenses long have been part of trial court lore, a comprehensive 2000 study shows definitively
that poor representation has been a maj or cause of serious errors in capital cases as well as a
maj or factor in the wrongful conviction and sentencing to death of innocent defendants.");
American Bar Ass0ciation, Evaluating Faimess and Accuracy in State Death Penalty Systems:
The Georgia Death Penalty Assessment Report iii (January 2006) ("The State of Georgia is
virtually alone in not providing indigent defendants sentenced to death with counsel for state
habeas proceedings. The lack of counsel on state habeas . . . creates a situation where this critical
constitutional safeguard is so undermined as to be ineffective."); American Bar Association,
Evaluating Faimess and Accuracy in State Death Penalty S_vstems: The Florida Death Penalty
Assessment Report iv (September 2006) ("Florida’s statutory qualification requirements for
capital collateral registry attorneys fall short of the requirements of the ABA Guidelines . . . and
are insufficient to ensure qualified counsel for every death-sentenced inrnate.").
9 § Marc Caputo, Justice Blasts Lawyers Over Death Row Appeals, Miami Herald, Jan.
28, 2005, at lB.
18

screening and monitoring to ensure minimum levels of competence."'° Likewise,
Alabama’s death row representation suffers from the same problems. The
Supreme Court noted that not only does Alabama set "low eligibility requirements
for lawyers appointed to represent indigent capital defendants at trial," §§
132 S. Ct. at 917, it is "[n]early alone" in not "guarantee[ing] representation to
indigent capital defendants in post-conviction proceedings," § at 91 8. Instead,
Alaba1na primarily relies on the efforts of out-of-state volunteer lawyers to handle
post-conviction representation. §
The agency analogy also breaks down because death row imnates have a
limited ability to communicate with their lawyers." Prisons are often located in
far-flung places that are difficult for lawyers to reach and often the lavvyers are not
even located within the same state as their death row clients. Additionally,
imnates have restricted access to phones, the intemet, and law libraries. In
Lawrence and Holland, it was the lack of access to word processing systems and a
‘° § Gary Blakenship, Registry Lavv_vers Defended at Committee Meeting, Fla. Bar
News, April l, 2005, at 5.
" "[A] habeas petitioner’s limited ability to communicate with the outside world is a
barrier to his ability to diligently request information from, or monitor the conduct of, his
defaulting attomey." §§ Marni von Wilpert, Comment, Holland v. Florida: A Prisoner’s Last
Chance, Attomey Error, and the Antiterrorism and Effective Death Penalty Act’s One-Year
Statute of Limitations Period for Federal Habeas Corpus Review, 79 Fordham L. Rev. l429,
1469 (2010).
19

law library that hampered the petitioners’ ability to communicate with their
attorneys. gee Brief for Petitioners at ll n.25, Lawrence, 549 U.S. 326 (No. 05-
8820); Petitioner’s Brief on the Merits at 2 n. 1 ., , 130 S. Ct. 2549 (No. 09-
5327). In Alabama, death row inmates’ phone calls are limited to twenty-five
minutes, with prison officials determining the schedule and frequency of phone
conversations.'2 According to Georgia’s inmate orientation handbook, phone calls
in Georgia prisons are limited to fifteen minutes.’3
Moreover, if a death row inmate is held in a super-maximum security prison
or a segregation housing unit ("SHU"), which most are, these barriers may be even
more difficult to overcome. First, access to basic reading and writing materials
may be entirely restricted, depending on how much of a security threat the inmate
is deemed to be. See, egg Beard v. Banks, 548 U.S. 521 (2006) (upholding prison
regulation that denies access to written material to violent imnates). Second,
communication with the outside world becomes even more challenging and more
restricted. "In virtually every State, death-row inmates are ‘locl2214s
Union Correctional Institu1ion
7s19 Nw 22s"' street
nature, FL 32o26-442o