Opinion
Case No. 2:02-CV-326 TS.
June 10, 2003.
This matter is before the court on Respondent's Motion Re: Compliance with AEDPA "Opt In" Provisions and Motion for Disclosure of Withheld Information.
INTRODUCTION
The Antiterrorism and Effective Death Penalty Act (AEDPA) reformed the federal court's procedures for habeas proceedings for a person under a state sentence of death. See Ashmus v. Calderon, 31 F. Supp.2d 1175, 1178-81 (N.D. Cal. 1998) (examining history and purpose of AEDPA). Under AEDPA, states are afforded the opportunity to opt-in to a streamlined procedure for federal habeas review of state-imposed death sentences. A state is entitled to the streamlined procedural provisions of Chapter 154 of AEDPA [ 28 U.S.C. § 2261 through 2266], if the state opts-in by providing for the mandatory appointment and compensation of counsel seeking state post-conviction relief. 28 U.S.C. § 2261(b) and (c). However, the streamlined procedures apply only if the state also establishes standards of competency for counsel appointed in post-conviction proceedings. § 2261(a).
Petitioner, Douglas Stewart Carter, is under a Utah state sentence of death. The State of Utah moves for a determination that it has complied with the requirements of § 2261 and is therefore entitled to the streamlined procedures of Chapter 154. Petitioner opposes the Motion on several grounds, including that the competency standards were not in place when his post-conviction counsel was appointed, that the new standards do not qualify because they are not mandatory or binding, and that the funding is inadequate. Pursuant to the Magistrate Judge's Order of May 30, 2002, the limitations periods imposed by 28 U.S.C. § 2263 are tolled until this court determines the opt-in issue.
The court directed supplemental briefing on the limited issue of whether or not Utah met the opt-in requirements when Petitioner's state post-conviction counsel was appointed several months before Utah amended its procedures to include competency standards specific to counsel appointed for post-conviction proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
There is no dispute as to the following facts:
1. In 1985, a Utah jury convicted Petitioner Douglas Stewart Carter of capital murder and sentenced him to death. On direct appeal, the Utah Supreme Court affirmed the conviction, but reversed Petitioner's death sentence. State v. Carter, 776 P.2d 886 (Utah 1989) (Carter I).
2. In 1992, a second jury re-sentenced Petitioner to death. The Utah Supreme Court affirmed that death sentence. State v. Carter, 888 P.2d 629 (Utah) (Carter II), cert. denied, 516 U.S. 858 (1993).
3. On October 25,1995, Petitioner filed a pro se petition for state post-conviction relief.
4. On December 6, 1995, three attorneys, including one of Petitioner's present counsel, Mr. Jack M. Morgan, Jr., undertook pro bono representation of Petitioner.
5. Petitioner's pro bono attorneys requested a sixty to ninety-day period in which to investigate and file an amended petition. The state post-conviction court permitted a sixty-day period.
6. Petitioner's pro bono attorneys filed an amended petition on February 23, 1996. AEDPA became effective on April 24, 1996 and Chapter 154's provisions are retroactive only if there is an opt-in. 28 U.S.C. § 2261(a); Tillman v. Cook, 25 F. Supp.2d 1245, 1252 (Utah 1998) (discussing retroactivity).
7. In 1997, the Utah Legislature passed Utah Code Ann. § 78-35a-202 (Supp. 2001). That statute provides for compensated appointed counsel to represent indigent capital petitioners in Utah post-conviction proceedings. The Utah statute requires the court to appoint at least one attorney who "is qualified to represent defendants in death penalty cases as required by Rule 8 of the Utah Rules of Criminal Procedure," Utah Code Ann. § 78-35a-202(2)(a).
8. The statute also provides that "costs of counsel and other reasonable litigation expenses incurred in providing the representation shall be paid from state funds by the Division of Finance according to rules established pursuant to [the] Utah Administrative Rulemaking Act." Utah Code Arm. § 78-35a-202(2) (c) (Supp. 2001).
9. The statute became effective on May 5, 1997. The legislative funding became available on July 1, 1997. The administrative rule governing the funding became effective September 15, 1997.
10. On October 13, 1997, Petitioner moved to appoint Messrs. Brad Rich and Jack Morgan, Jr., to represent him.
11. At that time, Utah R. Crim. P. 8 (1997) contained no qualification requirements specific to counsel appointed to represent post-conviction petitioners sentenced to death. However, it delineated the qualifications for counsel appointed to represent a capital defendant in the trial of capital cases as follows:
(1) at least one of the appointed attorneys had to have tried to verdict six felony cases within the four years preceding appointment or a total of twenty-five felony cases;
(2) at least one had to have appeared as counsel or co-counsel in a capital or felony homicide jury trial that went to a final verdict;
(3) within the five years preceding appointment, at least one had to have completed or taught at least eight hours of continuing legal education dealing in substantial part with trying death penalty cases; and
(4) at least one of the attorneys had to have practiced law for not less than five years. Utah R. Crim. P. 8(b) (1997).
In addition, Utah R. Crim P. 8(c) provided that, in making the selection of trial counsel in capital cases, the court consider the following factors before appointing counsel in a capital criminal proceeding:
(1) whether one or more of the attorneys had previously appeared as counsel or co-counsel in a capital case;
(2) the extent to which the attorneys under consideration had sufficient time and support and could dedicate those resources to the case with undivided loyalty to the client;
(3) the extent to which the attorneys had practiced law actively for the five years preceding employment;
(4) the attorneys' diligence, competence, and ability; and
(5) any other factor relevant to determining whether the attorney would fairly, efficiently, and effectively represent the capital defendant.
in addition, Utah R. Crim P. 8 provided for competency standards for attorneys appointed to represent defendants sentenced to death on direct appeal. Utah R. Crim. P. 8(d).
12. In support of Petitioner's motion to appoint counsel, Mr. Rich represented that: 1) he was willing to be appointed; 2) he had tried at least twenty-five felony cases; 3) he had appeared both as lead counsel and as co-counsel in capital and felony homicide cases tried to a jury, including one which had been tried to final verdict; 4) he had completed over twenty hours of legal education devoted to death penalty trials; 5) he had completed over twenty hours of continuing legal education related to post-conviction remedies in death penalty cases; and 6) he had practiced law for a total of twenty-four years and had devoted his practice primarily to criminal defense.
13. On October 27, 1997, the state district court appointed Mr. Jack Morgan and Mr. Bradley Rich to represent Petitioner. The court held no hearing.
14. Approximately five months after the appointment, Utah R. Crim. P. 8 was amended to include qualifications specific to representation of death penalty post-conviction cases. Utah R. Crim. P. 8(e). Those additional qualifications required that, in order to be found qualified, and therefore eligible for appointment to represent indigent persons sentenced to death in post-conviction cases, the combined experience of the appointed attorneys must meet the following criteria:
(1) at least one of the appointed attorneys must have served as counsel in at least three felony or post-conviction appeals;
(2) at least one of the appointed attorneys must have appeared as counsel or co-counsel in a post-conviction case at an evidentiary hearing or on appeal, or must have otherwise demonstrated proficiency in post-conviction litigation;
(3) within five years prior to the appointment, one attorney must have completed a continuing legal education course substantially dealing with death penalty cases at the trial, appeal, or post-conviction stage;
(4) at least one of the appointed attorneys must have tried to judgment or verdict three civil jury or felony cases within the past four years or ten cases total; and
(5) the experience of at least one of the appointed attorneys must total not less than five years in the active practice of law.
15. Petitioner never raised any issue in the Utah courts concerning whether Mr. Rich or Mr. Morgan's combined experience fell short of that required by the April 1998 amendment.
16. There followed lengthy proceedings in the state court ending with the Utah Supreme Court affirming the denial of Petitioner's state habeas petitions and remitting the case on March 7, 2002. State v. Carter (Carter III), 44 P.3d 626, 636 (Utah 2002).
20. The administrative rule in effect during Petitioner's state post-conviction proceedings provided a schedule for attorney fees and expenses. Petitioner's counsel has applied for and received attorney fees. Petitioner's counsel has also filed a motion seeking reimbursement of litigation costs but the record does not reveal the status of that motion
ANALYSIS
Petitioner contends that the State of Utah does not qualify for the opt-in procedures in this case because Utah had not yet implemented any post-conviction competency standards as required by § 2261 at the time his state post-conviction counsel was appointed.
Respondent contends that, at the time Petitioner's post-conviction counsel was appointed, Utah had in effect the version of Utah R. Crim. P. 8 which had procedures for appointment of trial counsel that did, in Petitioner's case, result in appointment of counsel who were qualified to represent a person under sentence of death in post-conviction proceedings. Therefore, Respondent argues that because Petitioner has received the benefit of appointment and payment of competent counsel, the state must receive the quid pro quo for funding such counsel, namely the streamlined procedures in Chapter 154 of AEDPA.
In support of his position that the date of appointment of counsel controls for determining whether the opt-in requirements have been met, Petitioner relies on cases from other jurisdictions.
Whether a state's system satisfies the requirements of Section [2261] should be determined by examining the system as it existed at the time a petitioner first received appointment of counsel in the post-conviction process. It is at this time that a petitioner is first subject to the state's procedures, and would therefore be entitled to enjoy the protections of the state's system. To analyze a state's system at any later date would prejudice the petitioner whose case might be subject to the expedited review.Wright v. Angelone, 944 F. Supp. 460, 463 (E.D. Va. 1996); accord Skillcorn v. Luebbers, 265 F.3d 687, 691 (8th Cir. 2001) (although counsel had been selected a few days earlier, it is the procedures that are in effect on the day of counsel's appointment that control for purposes of determining whether a state satisfies the opt-in requirement).
Respondent contends that these cases are not controlling and are not persuasive. The court finds that the cases are not controlling, but does find them persuasive. More importantly, the court finds that the plain language of § 2261 requires that the procedures in effect on the date of the appointment of counsel are controlling for purposes of determining the state's eligibility for opt-in status. Section 2261 provides:
(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State Custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.
(b) This chapter [ 28 U.S.C. § 2261 through 2266] is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.
(c) Any mechanism for the appointment, compensation and reimbursement of counsel as provided in subsection (b) must offer counsel to all state prisoners under capital sentence and must provide for the entry of an order by a court of record —
(1) appointing one or more counsel to represent the prisoner upon a finding that the prisoner is indigent . . .
* * *
(e) The ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising under section 2254 [federal habeas relief for persons convicted in state proceedings]. This limitation shall not preclude the appointment of different counsel, on the court's own motion or at the request of the prisoner, at any phase of State or Federal post-conviction proceedings on the basis of the ineffectiveness or incompetence of counsel in such proceedings.28 U.S.C. § 2261.
Thus, § 2261 requires that the state have a "mechanism for the appointment . . . of qualified counsel." That mechanism must offer counsel to all indigent persons under capital sentence. The standards of competency are to be in place at the time of "the entry of an order by a court of record" "appointing one or more counsel." § 2261(c)(1). Thus, § 2261 clearly refers to a mechanism that includes standards of competency that is in place at the time of appointment of counsel.
Respondent contends that the court should consider whether or not competent counsel was actually appointed in this case and whether Petitioner has been prejudiced in this case, instead of reviewing whether there was mechanism in place that provided standards for competency of counsel when counsel was appointed. Consideration of competency of counsel under § 2261 on a case-by-case basis, rather than considering whether a mechanism with standards of competency was in place and was followed on the date of appointment is time-consuming, as illustrated in the present case. Thus, it would eliminate one of the primary purposes of AEDPA — streamlined procedures.
Because the state had no specific standard for the competency of post-conviction counsel in place at the time of appointment, it does not qualify under § 2261. The court rejects Respondent's position that the former Rule 8's standards in place for appointment of trial counsel or counsel for direct appeals in capital cases met the standards for competency required by § 2261(b). See Tillman v. Cook, 25 F. Supp.2d 1245, 1252 (Utah 1988) (finding that the state of Utah had not complied with section 2261(b) (c) and therefore Chapter 154 would not apply retroactively).
Respondent attempts to minimize the expertise necessary to adequately represent a person in a case in which AEDPA will apply. The court agrees with the cases noting the difficulty and complexity of federal habeas law under AEDPA. E.g. Hill v. Butterworth, 941 F. Supp. 1129, 1142 (N.D. Fla. 1996), rev'd on other grounds Hill v. Butterworth, 147 F.3d 1333 (11th Cir. 1998). The court notes that the limitations period in Chapter 154 is short and strict. See 28 U.S.C. § 2263. To adequately represent a client in a case where AEDPA applies, counsel must have a thorough knowledge of two sets, state and federal, procedural requirements and how, and when, they interface. For example, counsel must develop the factual basis of known claims in the state court, including known federal claims. If counsel did not act effectively at the early stages, opportunities are thereafter foreclosed by rules of exhaustion and procedural default. Yet a petitioner has no relief under AEDPA if his post-conviction counsel was ineffective at even the most critical stages. 28 U.S.C. § 2261 (e) (ineffective assistance of counsel in state or federal post-conviction proceedings is not grounds for relief if state has opted-in to Chapter 154). Thus, it is only right to apply the stricter and streamlined AEDPA procedures if the State complied with § 2261's competency requirements when it appointed post-conviction counsel, because expertise is required at the critical early stages in order to lay adequate groundwork for post-conviction state and federal petitions.
CONCLUSION AND ORDER
The court finds that the provisions of AEDPA's Chapter 154, 28 U.S.C. § 2261 through 2266, are not applicable to this case because Utah had not satisfied the provisions of subsections (b) and (c) of 28 U.S.C. § 2261 at the time Petitioner's post-conviction counsel was appointed. As a result of the court's ruling that Utah had not opted-in at the time of appointment of Petitioner's post-conviction counsel, the court need not address the parties' numerous other arguments regarding opt-in, including whether the current Utah R. Crim. P. 8 meets the standard for opt-in or the adequacy of the funding provided by the State of Utah. Because the adequacy of funding is no longer at issue, the court will deny as moot Respondent's Motion for Disclosure of Withheld information.
It is therefore
ORDERED that Respondent's Motion Re: Compliance with AEDPA "Opt In" Provisions is DENIED. It is further
ORDERED that the provision of the May 30, 2002 Order tolling the period of the limitations period imposed by 28 U.S.C. § 2263 shall expire 10 days after the entry of this Order. It is further
ORDERED that the April 26, 2002 and May 30, 2003 Orders staying Petitioner's execution are unaffected by this Order. It is further
ORDERED that Respondent's Motion for Disclosure of Withheld Information is DENIED as moot.