Supreme Court Halts Missouri Execution, Then Reverses Eighth Circuit, Sending Case Back for Conflict-Free Counsel to Litigate Equitable Tolling of Blown Statute of Limitations

We are thrilled to welcome guest bloggers, Jennifer Merrigan and Joseph Perkovich, who worked with Saint Louis University School of Law students to halt Mark Christeson’s execution and reverse a lower court decision, exercising the federal statutory right to counsel for individuals sentenced to death by a state court. Ms. Merrigan and Mr. Perkovich, along with John R. Mills, are Mark Christeson's pro bono counsel and the principal attorneys of the Phillips Black Project, a nonprofit, public interest law practice focused on death penalty representation. Phillips Black’s attorneys founded and direct the Death Penalty Proportionality Project at the Saint Louis University School of Law. The Death Penalty Proportionality Project provides law students the opportunity to provide legal representation to individuals sentenced to death and allows them to contribute to research on Missouri’s death penalty statute.

On January 22, the U.S. Supreme Court, by a vote of 7 to 2, decided Christeson v. Roper, 574 U.S. ___ (2014), 2015 WL 232187, summarily reversing the judgment of the Eighth Circuit Court of Appeals and returning Mark Christeson’s death penalty habeas corpus case to the lower federal courts for further proceedings. The Western District of Missouri and the Court of Appeals had contravened the high Court’s decision in Martel v. Clair, 565 U.S. __, 132 S.Ct. 1276 (2012), where it established the “interests of justice” standard applicable to the federal statutory right to counsel for individuals sentenced to death. 18 U.S.C. §3599. Clair held that the interests of justice shall determine motions to substitute appointed counsel pursuant to §3599(e), which “contemplates that a court may ‘replace’ appointed counsel with ‘similarly qualified counsel . . . upon motion’ of the petitioner.” Christeson, (slip op., at 4). On October 28, 2014 the Court had stayed Mr. Christeson’s scheduled execution in order to consider his certiorari petition.

The need for Mr. Christeson’s substitution of his court-appointed counsel emanated from their violation, in 2005, of his 1-year federal habeas corpus statute of limitations under 28 U.S.C. §2254 (Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). The court-appointed attorneys “failed to meet with Christeson until more than six weeks after his petition was due” and ultimately filed a cursory petition “117 days too late.” (Slip op., at 2). As the high Court noted, leading legal ethicist Lawrence Fox of the Ethics Bureau at the Yale Law School had reported to the district court that “if this was not abandonment, I am not sure what would be.” (Slip op., id). Over seven years ago, this error ended Christeson’s federal case in the Eighth Circuit without any substantive review of the constitutional violations in his 1999 trial in Missouri state court.

In April 2014, his federal court-appointed lawyers reached out for advice from the authors of this post, Jennifer Merrigan and Joseph Perkovich, after receiving an order from the Missouri Supreme Court to show cause why their client’s execution date should not be set. But, when the authors met Mr. Christeson, it was clear that he did not understand that his appointed lawyers had blown his federal statute of limitations. As the Supreme Court noted, Mr. Christeson “appears to have severe cognitive disabilities that lead him to rely entirely on his attorneys.” A Rule 60(b) motion to re-open his case in order to litigate equitable tolling of the missed statute of limitations would be the only way to obtain any federal review of the constitutional violations in his trial and appeal.

Noting that the court-appointed attorneys were “initially receptive to . . . assistance,” the high Court found that they “soon refused to allow outside counsel access to their files,” eventually precipitating the authors to file a pro bono motion for substitution of counsel to protect his interests. While Mr. Christeson’s pro bono counsel were litigating his statutory right to appointed counsel, the Missouri Supreme Court scheduled his execution. Overall, the federal district court twice denied motions for substitution and the court of appeals twice rejected appeals before the case was able to make its way into the U.S. Supreme Court via an application for a stay of execution pending disposition of the cert. petition, which was filed with the support of amicus briefing from Former State and Federal Judges by Goldstein & Russell,  P.C. and Legal Ethicists and Capital Habeas Practitioners by the Yale Ethics Bureau.

Capital warrant litigation is complex and enormously time consuming. In Mr. Christeson's case it was especially difficult, as counsel were litigating with no resources and no case file after having been on the case for mere months. As adjunct clinical professors at the Saint Louis University School of Law, the authors enlisted clinical students, Aly Ricci and Kristin Swain, to assist with research, record review, and witness interviews. The support of SLU's clinical program, especially by the Supervisor of the Criminal Defense Clinic Susan McGraugh, and Dean Michael Wolff were instrumental in the around-the-clock litigation.

 
Saint Louis University School of Law Clinical  Students, 3Ls

On October 28, roughly twelve hours before Mr. Christeson’s scheduled execution at 12:01 a.m. CDT, Justice Alito, in his capacity as the circuit justice for the Eighth Circuit, took perhaps the unprecedented step in Supreme Court history of ordering supplemental briefing in relation to an application for a stay of execution. The order called for the parties to brief “whether the record shows” that Mr. Christeson authorized pro bono counsel to seek substitution as his attorneys. About two hours later, the parties filed their briefs, wherein pro bono counsel, after obtaining over the phone a release from Mr. Christeson in order to file attorney-client privileged communications, lodged with the Court briefing and, pursuant to Rule 32.3,  documentation manifesting his retention of the pro bono attorneys months earlier and correspondence, typed by a fellow inmate working in the law library, expressing his desire to have his appointed lawyers replaced because they did not have his “best interest in mind.” Just two hours before he was scheduled to be executed at midnight, the U.S. Supreme Court granted Mr. Christeson a stay pending the determination of his certiorari petition. After six relistings, the Court entered its opinion simultaneously granting certiorari and reversing the Eighth Circuit.

Christeson found that the Court of Appeals’ “principal error was its failure to acknowledge [the court-appointed lawyers’] conflict of interest. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for ‘serious instances of attorney misconduct.’” (Slip op., at 5), quoting Holland v. Florida, 560 U.S. 631, 651-652 (2010). The “serious instances of attorney misconduct” here regarded their abandonment of Mr. Christeson at the critical juncture in his federal case, namely when they needed to file a habeas petition within the 1-year limitations period. Justice Alito dissented, joined by Justice Thomas, acknowledging the “serious” error by the court-appointed attorneys and opining that full briefing and argument should have been ordered. (Slip op., dissenting opinion at 2-3).

Already, the Court's ruling has provided the basis for a remand in another capital case. On January 27, a panel of the Fifth Circuit Court of Appeals, “[i]n light of the Supreme Court’s decision in Christeson . . .,” sua sponte vacated in part its previous opinion denying a Certificate of Appealability under 28 U.S.C. §2553 of the denial of a federal habeas petition. Tabler v. Stephens, No. 12-70013 (unpub.), 2015 WL 327646. Tabler extends to ineffective assistance of federal habeas counsel the equitable rule in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), that the inadequate assistance of state habeas counsel “may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” The Fifth Circuit panel relied on Christeson to explain that “[b]ecause Tabler’s attorneys for his state habeas proceedings were also his attorneys for his federal habeas proceedings, they faced a conflict of interest that could have prevented them from arguing that their performance in Tabler’s competency hearing was deficient, and, accordingly, Tabler’s statutory right to counsel was violated.”

As for Mark Christeson’s case, the next step is for it to return on remand to the Eighth Circuit. In the meantime, the authors and their clinical students continue to work on his behalf.