throbber
Cite as: 574 U. S. ____ (2015)
`
`
`Per Curiam
`SUPREME COURT OF THE UNITED STATES
`
` MARK A. CHRISTESON v. DON ROPER, WARDEN
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
`
`
`No. 14–6873. Decided January 20, 2015
`
` PER CURIAM.
` Petitioner Mark Christeson’s first federal habeas peti-
`tion was dismissed as untimely. Because his appointed
`attorneys—who had missed the filing deadline—could not
`
`be expected to argue that Christeson was entitled to the
`equitable tolling of the statute of limitations, Christeson
`requested substitute counsel who would not be laboring
`under a conflict of interest. The District Court denied the
`motion, and the Court of Appeals for the Eighth Circuit
`summarily affirmed. In so doing, these courts contra-
`
`vened our decision in Martel v. Clair, 565 U. S. ___ (2012).
`Christeson’s petition for certiorari is therefore granted,
`the judgment of the Eighth Circuit is reversed, and the
`case is remanded for further proceedings.
`I
`
`In 1999, a jury convicted Christeson of three counts of
`capital murder.
`It returned verdicts of death on all
`three counts. The Missouri Supreme Court affirmed
`Christeson’s conviction and sentence in 2001, see State v.
`Christeson, 50 S. W. 3d 251 (en banc), and affirmed the
`
`
`denial of his postconviction motion for relief in 2004, see
`Christeson v. State, 131 S. W. 3d 796 (en banc).
`
`Under the strict 1-year statute of limitations imposed by
`
`the Antiterrorism and Effective Death Penalty Act of 1996
`(AEDPA), 28 U. S. C. §2244(d)(1), Christeson’s federal
`habeas petition was due on April 10, 2005. Nine months
`before this critical deadline, the District Court appointed
`
`attorneys Phil Horwitz and Eric Butts to represent
`
`
`
`
`
`1
`
`
`
`

`
`
` CHRISTESON v. ROPER
`
`
`Per Curiam
`Christeson in his federal habeas proceedings. See 18
`U. S. C. §3599(a)(2) (providing for appointment of counsel
`for state death row inmates).
`Horwitz and Butts, as they have subsequently acknowl-
`
`edged, failed to meet with Christeson until more than six
`weeks after his petition was due. See App. to Pet. for Cert.
`
`93a. There is no evidence that they communicated with
`their client at all during this time. They finally filed the
`petition on August 5, 2005—117 days too late. They have
`since claimed that their failure to meet with their client
`and timely file his habeas petition resulted from a simple
`miscalculation of the AEDPA limitations period (and in
`defending themselves, they may have disclosed privileged
`
`client communications). See id., at 90a–92a, 135a. But a
`
`legal ethics expert, reviewing counsel’s handling of
`Christeson’s habeas petition, stated in a report submitted
`to the District Court: “[I]f this was not abandonment, I am
`not sure what would be.” Id., at 132a.
`
`
`The District Court dismissed the petition as untimely,
`and the Court of Appeals denied Christeson’s application
`for a certificate of appealability. Christeson, who appears
`to have severe cognitive disabilities that lead him to rely
`entirely on his attorneys, may not have been aware of this
`dismissal. See id., at 229a, 231a, 237a.
`
`Nearly seven years later, Horwitz and Butts contacted
`attorneys Jennifer Merrigan and Joseph Perkovich to
`discuss how to proceed in Christeson’s case. Merrigan and
`
`Perkovich
`immediately noticed a glaring problem.
`
`Christeson’s only hope for securing review of the merits of
`his habeas claims was to file a motion under Federal Rule
`of Civil Procedure 60(b) seeking to reopen final judgment
`on the ground that AEDPA’s statute of limitations should
`have been equitably tolled. But Horwitz and Butts could
`not be expected to file such a motion on Christeson’s be-
`half, as any argument for equitable tolling would be prem-
`
`
`ised on their own malfeasance in failing to file timely the
`
`
`
`
`
`2
`
`
`
`
`

`
`
`Cite as: 574 U. S. ____ (2015)
`
`
`Per Curiam
`habeas petition. While initially receptive to Merrigan and
`Perkovich’s assistance, Horwitz and Butts soon refused to
`allow outside counsel access to their files. See App. to Pet.
`for Cert. 345a.
`
`On May 23, 2014, Merrigan and Perkovich filed a mo-
`
`tion for substitution of counsel. The District Court denied
`it was “not
`the motion, explaining only that
`in
`[Christeson’s] best interest to be represented by attorneys
`located in New York and Pennsylvania,” as Merrigan and
`
`Perkovich are. Id., at 169a. The District Court did not
`address Merrigan and Perkovich’s offer to forgo all fees
`and expenses associated with travel to Missouri, nor did it
`
`address the possibility of appointing other attorneys for
`Christeson.
`
`Christeson appealed. The Eighth Circuit dismissed for
`lack of jurisdiction, apparently reasoning that Merrigan
`and Perkovich were not authorized to file an appeal on
`Christeson’s behalf.1 On September 19, 2014, while this
`
`appeal was still pending before the Eighth Circuit, the
`Missouri Supreme Court issued a warrant of execution
`setting October 29, 2014, as Christeson’s execution date.
`After further proceedings not relevant here, Merrigan
`
`and Perkovich again filed a motion for substitution of
`counsel on Christeson’s behalf. The District Court again
`denied the motion. Explaining that substitution of
`“federally-appointed counsel is warranted only when it would
`serve the interests of justice,” it offered four reasons for its
`decision. Order in No. 04–CV–08004 (WD Mo., Oct. 22,
`
`
`2014), p. 1, App. to Pet. for Cert. 375a (quoting Lambrix v.
`
`Secretary, Florida Dept. of Corrections, 756 F. 3d 1246,
`1259 (CA11 2014); internal quotation marks omitted).
`
`First, it deemed the motion to be untimely because it “was
`not filed until 2014, and shortly before [Christeson’s]
`——————
`1Christeson has since submitted a signed retainer agreement with
`
` Merrigan and Perkovich that removes any doubt on that score.
`
`
`
`3
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`4
`
`
`
` CHRISTESON v. ROPER
`
`
`Per Curiam
`execution date.” App. to Pet. for Cert. 375a. Second, it
`observed that Horwitz and Butts had not “abandoned”
`
`Christeson, as they had recently appeared on his behalf in
`a class-action lawsuit challenging Missouri’s lethal injec-
`tion protocol. Id., at 376a. Third, it noted that although
`Horwitz and Butts had represented Christeson before the
`Eighth Circuit, that court had not appointed substitute
`counsel.
`Ibid. Fourth and finally, the District Court
`expressed its belief that granting the motion would set “an
`untenable precedent” by allowing outside attorneys to seek
`
`“‘abusive’” delays in capital cases. Ibid.
`
`Christeson again appealed. This time, the Eighth Cir-
`cuit summarily affirmed the District Court’s order. We
`stayed Christeson’s execution, see post, p. ____, and now
`reverse.
`
`
`
`
`
`
`II
`
`
`Title 18 U. S. C. §3599 “entitles indigent defendants to
`the appointment of counsel in capital cases, including
`
`habeas corpus proceedings.” Martel v. Clair, 565 U. S., at
`___ (slip op., at 1). “By providing indigent capital defend-
`ants with a mandatory right to qualified legal counsel in
`these proceedings, Congress has recognized that federal
`habeas corpus has a particularly important role to play in
`promoting fundamental fairness in the imposition of the
`
`
`death penalty.” McFarland v. Scott, 512 U. S. 849, 859
`(1994). Congress has not, however, conferred capital
`
`habeas petitioners with the right to counsel of their choice.
`Instead, the statute leaves it to the court to select a
`properly qualified attorney. See §§3599(a)–(d). But the
`statute contemplates that a court may “replace” appointed
`counsel with “similarly qualified counsel . . . upon motion”
`of the petitioner. §3599(e).
`
`We addressed the standard that a court should apply in
`considering such a motion in Clair. We rejected the ar-
`gument that substitution of an appointed lawyer is war-
`
`
`
`
`
`

`
`5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Cite as: 574 U. S. ____ (2015)
`
`
`Per Curiam
`ranted in only three situations: “when the lawyer lacks the
`qualifications necessary for appointment . . . ; when he has
`a disabling conflict of interest; or when he has completely
`abandoned the client.” 565 U. S., at ___ (slip op., at 7)
`(internal quotation marks omitted). Instead, we adopted a
`broader standard, holding that a motion for substitution
`should be granted when it is in the “‘interests of justice.’”
`Id., at ___ (slip op., at 13). We further explained that the
`
`factors a court of appeals should consider in determining
`whether a district court abused its discretion in denying
`such a motion “include: the timeliness of the motion; the
`adequacy of the district court’s inquiry into the defend-
`ant’s complaint; and the asserted cause for that complaint,
`including the extent of the conflict or breakdown in com-
`munication between lawyer and client (and the client’s
`responsibility, if any, for that conflict).” Ibid.
`
`
`The District Court here properly recognized that its
`consideration of Christeson’s motion for substitution was
`
`governed by Clair’s “interests of justice” standard. But its
`denial of his motion did not adequately account for all of
`the factors we set forth in Clair.
`
`to
`failure
`its
`The court’s principal error was
`acknowledge Horwitz and Butts’ conflict of interest. Toll-
`ing based on counsel’s failure to satisfy AEDPA’s statute
`of limitations is available only for “serious instances of
`attorney misconduct.” Holland v. Florida, 560 U. S. 631,
`651–652 (2010). Advancing such a claim would have
`required Horwitz and Butts to denigrate their own per-
`formance. Counsel cannot reasonably be expected to make
`such an argument, which threatens their professional
`
`reputation and livelihood. See Restatement (Third) of
`Law Governing Lawyers §125 (1998). Thus, as we ob-
`served in a similar context in Maples v. Thomas, 565 U. S.
`___, ___, n. 8 (2012) (slip op., at 17, n. 8), a “significant
`conflict of interest” arises when an attorney’s “interest in
`avoiding damage to [his] own reputation” is at odds with
`
`
`
`
`
`

`
`6
`
`
`
`
`
` CHRISTESON v. ROPER
`
`
`Per Curiam
`his client’s “strongest argument—i.e., that his attorneys
`had abandoned him.”
`
`
`Indeed, to their credit, Horwitz and Butts acknowledged
`the nature of their conflict. Shortly before the first motion
`for substitution was filed, they provided an update to the
`Missouri Supreme Court on the status of Christeson’s
`collateral proceedings. In it, they stated:
`
`“Because counsel herein would be essential witnesses
`to factual questions indispensable to a Holland in-
`quiry, there may be ethical and legal conflicts that
`would arise that would prohibit counsel from litigat-
`ing issues that would support a Holland claim. Un-
`waivable ethical and legal conflicts prohibit under-
`signed counsel from litigating these issues in any way.
`See Holloway v. Arkansas, 435 U. S. 475, 485–486
`(1978). Conflict free counsel must be appointed to
`present the equitable tolling question in federal dis-
`trict court.” App. to Pet. for Cert. 48a–49a.
`
`Yet, in their response to the District Court’s order to
`address the substitution motion, Horwitz and Butts char-
`acterized the potential arguments in favor of equitable
`tolling as “ludicrous,” and asserted that they had “a legal
`basis and rationale for the [erroneous] calculation of the
`filing date.” Id., at 86a, 90a. While not every case in
`which a counseled habeas petitioner has missed AEDPA’s
`statute of limitations will necessarily involve a conflict of
`
`interest, Horwitz and Butts’ contentions here were directly
`and concededly contrary to their client’s interest, and
`manifestly served their own professional and reputational
`interests.
`
`Clair makes clear that a conflict of this sort is grounds
`for substitution. Even the narrower standard we rejected
`in that case would have allowed for substitution where an
`attorney has a “‘disabling conflict of interest.’” 565 U. S.,
`
`at ___ (slip op., at 7). And that standard, we concluded,
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 574 U. S. ____ (2015)
`
`
`Per Curiam
`would “gu[t]” the specific substitution-of-counsel clause
`contained in §3559(e), which must contemplate the grant-
`
`ing of such motions in circumstances beyond those where a
`petitioner effectively “has no counsel at all”—as is the case
`when counsel is conflicted. Id., at ___ (slip op., at 10).
`Indeed, we went so far as to say that given a capital de-
`fendant’s “statutory right to counsel,” even “in the ab-
`sence” of §3599(e) a district court would be compelled “to
`appoint new counsel if the first lawyer developed a con-
`
`flict.” Ibid.
`
`Given the obvious conflict of interest here, the consider-
`ations relied upon by the District Court cannot justify its
`decision to deny petitioner new counsel. The second and
`
`third factors noted by the District Court—that appointed
`counsel continued to represent Christeson in litigation
`challenging the means of his execution, and that the
`Eighth Circuit had not previously substituted counsel—
`are not substantial. Whether Horwitz and Butts had
`
`currently “abandoned” Christeson is beside the point:
`Even if they were actively representing him in some mat-
`ters, their conflict prevented them from representing him
`in this particular matter. Likewise, it is irrelevant that
`the Eighth Circuit had not previously sua sponte directed
`substitution of counsel
`in
`the course of denying
`Christeson’s request for a certificate of appealabilty and
`adjudicating his challenge to Missouri’s execution protocol,
`when the conflict was not evident.
`
`The first and fourth factors cited by the District Court—
`
`the delay in seeking substitution and the potential for
`abuse—might be valid considerations in many cases. See
`Clair, 565 U. S., at ___ (slip op., at 12) (“Protecting against
`abusive delay is an interest of justice”). But under the
`circumstances here, these factors alone cannot warrant
`denial of substitution. Christeson’s first substitution
`motion, while undoubtedly delayed, was not abusive. It
`was filed approximately a month after outside counsel
`
`
`
`
`
`7
`
`
`
`
`
`

`
`8
`
`
`
` CHRISTESON v. ROPER
`
`
`Per Curiam
`became aware of Christeson’s plight and well before the
`State had set an execution date, and it requested only 90
`
` days to investigate and file a Rule 60(b) motion.
`Nor is it plain that any subsequent motion that substi-
`
`tute counsel might file on Christeson’s behalf would be
`futile. See id., at ___ – ___ (slip op., at 15–16) (affirming
`denial of substitution motion as untimely where any filing
`made by substitute counsel would have been futile). To be
`
`sure, Christeson faces a host of procedural obstacles to
`having a federal court consider his habeas petition. Al-
`though Christeson might properly raise a claim for relief
`pursuant to Rule 60(b), see Gonzalez v. Crosby, 545 U. S.
`524, 535–536 (2005), to obtain such relief he must demon-
`strate both the motion’s timeliness and, more significant
`
`here, that “ ‘extraordinary circumstances’ justif[y] the
`Id., at 535 (quoting
`reopening of a final judgment.”
`
`Ackermann v. United States, 340 U. S. 193, 199 (1950)).
`
`That, in turn, will require Christeson to show that he was
`entitled to the equitable tolling of AEDPA’s statute of
`limitations. He should have that opportunity, and is
`entitled to the assistance of substitute counsel in doing so.
`
`
`*
`*
`*
`The petition for certiorari and the motion to proceed in
`
`forma pauperis are granted. The judgment of the Eighth
`Circuit Court of Appeals is reversed, and the case is
`remanded for further proceedings consistent with this
`
`opinion.
`
`
`
`
`
`
`It is so ordered.
`
`
`
`

`
`Cite as: 574 U. S. ____ (2015)
`
`
` ALITO, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
` MARK A. CHRISTESON v. DON ROPER, WARDEN
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
`
`
`No. 14–6873. Decided January 20, 2015
`
` JUSTICE ALITO, with whom JUSTICE THOMAS joins,
`
`
`dissenting.
`I would not reverse the decision of the Court of Appeals
`
`
`in this case without briefing and argument. As the Court
`acknowledges, petitioner cannot obtain review of the
`merits of his federal habeas claims without showing that
`the applicable statute of limitations should have been
`equitably tolled, ante, at 2, and the availability of equit-
`able tolling in cases governed by the Antiterrorism and
`Effective Death Penalty Act of 1996 (AEDPA) is a question
`of great importance.
`AEDPA sought to ameliorate the lengthy delay that had
`
`often characterized federal habeas proceedings in the
`past.* See Woodford v. Garceau, 538 U. S. 202, 206 (2003)
`(“Congress enacted AEDPA to reduce delays in the execu-
`tion of state and federal criminal sentences, particularly in
`capital cases”). AEDPA thus imposed a strict 1-year time
`limit for filing a federal habeas petition. 28 U. S. C.
`§2244(d). If this 1-year period were equitably tolled
`whenever a habeas petitioner’s attorney missed the dead-
`line and thus rendered ineffective assistance, the 1-year
`period would be of little value, and the days of seemingly
`interminable federal habeas review would return. In
`
`
`
`
`
`
`
`
`——————
`*Members of this Court have lamented the delay that often occurs in
`
`capital cases. Johnson v. Bredesen, 558 U. S. 1067, 1067–1070 (2009)
`
`
`(Stevens, J., statement respecting denial of certiorari), Elledge v.
`Florida, 525 U. S. 944, 944–946 (1998) (BREYER, J., dissenting from
`
`denial of certiorari).
`
`
`
`
`
`1
`
`
`
`

`
`
`
`2
`
`
`
`
`
` CHRISTESON v. ROPER
`
` ALITO, J., dissenting
`
`
`Holland, the Court held that the AEDPA statute of limita-
`tions may be equitably tolled—but only under quite ex-
`
`traordinary circumstances. Holland v. Florida, 560 U. S.
`
`631, 651–652 (2010). Any expansion or further delinea-
`tion of such circumstances should not be undertaken
`without the careful consideration that is possible only
`
`after the normal procedure of full briefing and argument.
`
`The Court believes that briefing and argument are not
`necessary in this case, and my understanding of the
`Court’s decision is that it expresses no view whatsoever on
`the question whether petitioner may ultimately be entitled
`to equitable tolling. I understand the Court to hold only
`that conflict-free substitute counsel should have been
`appointed for the purposes of investigating the facts re-
`lated to the issue of equitable tolling and presenting what-
`ever argument can be mounted in support of a request for
`that relief.
`
`Based on the present record, it is not clear that this case
`involves anything other than an error, albeit a serious one,
`on the part of the attorneys who represented petitioner at
`the time when his federal habeas petition was due to be
`filed. According to those attorneys, they miscalculated the
`due date and as a result filed the petition after the time
`had run. They met with petitioner to discuss the habeas
`petition prior to the date on which they say they thought
`the petition was due but after the date on which it was
`actually due. These facts show nothing more than attor-
`ney error and thus fall short of establishing the kind of
`abandonment that is needed for equitable tolling under
`our precedent. See id., at 651–652. I do not understand
`the Court’s opinion to hold otherwise.
`
`Because of the close relationship between the question
`that the Court decides (the propriety of the District
`Court’s refusal to appoint substitute counsel) and the
`question of petitioner’s entitlement to equitable tolling, I
`
`think that plenary review would have been more appro-
`
`
`
`
`
`

`
`
`
` Cite as: 574 U. S. ____ (2015)
`
` ALITO, J., dissenting
`
`
`priate in this case. I write separately to emphasize that
`
`the Court’s summary disposition does not address that
`
`issue.
`
`3

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