Harbison v. Bell

• Citation: 556 U.S. 180,77 USLW 4240,173 L.Ed.2d 347,129 S.Ct. 1481
• Decision Date: 01 April 2009
• Docket Number: No. 07–8521.,07–8521.
• Parties: Edward Jerome HARBISON, Petitioner, v. Ricky BELL, Warden.
• Court: United States Supreme Court

556 U.S. 180

129 S.Ct. 1481

173 L.Ed.2d 347

77 USLW 4240

Edward Jerome HARBISON, Petitioner,

v.Ricky BELL, Warden.

No. 07–8521.

Supreme Court of the United States

Argued Jan. 12, 2009.

Decided April 1, 2009.

Syllabus^*

After the Tennessee state courts rejected petitioner Harbison's conviction and death sentence challenges, the Federal District Court appointed a federal public defender to represent him in filing a habeas petition under 28 U.S.C. § 2254. That petition was denied. Harbison then sought appointment of counsel for state clemency proceedings. Because Tennessee law no longer authorizes the appointment of state public defenders as clemency counsel, his federal counsel moved to expand the scope of her representation to include the state proceedings. In denying the motion, the District Court relied on Circuit precedent construing 18 U.S.C. § 3599, which provides for the appointment of federal counsel. The Sixth Circuit affirmed.

Held:

1. A certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A) is not required to appeal an order denying a request for federally appointed counsel under § 3599 because § 2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding's merits. P. 1485.

2. Section 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation. Pp. 1485 – 1491.

(a) Section 3599(a)(2), which refers to both § 2254 and § 2255 proceedings, triggers the appointment of counsel for both state and federal postconviction litigants, and § 3599(e) governs the scope of appointed counsel's duties. Thus, federally funded counsel appointed to represent a state prisoner in § 2254 proceedings “shall also represent the defendant in such ... proceedings for executive or other clemency as may be available to the defendant.” § 3599(e). Because state clemency proceedings are “available” to state petitioners who obtain subsection (a)(2) representation, the statute's plain language indicates that appointed counsel's authorized representation includes such proceedings. Moreover, subsection (e)'s reference to “proceedings for ... other clemency” refers to state proceedings, as federal clemency is exclusively executive, while States administer clemency in various ways. The Government is correct that appointed counsel is not expected to provide each service enumerated in subsection (e) for every client. Rather, counsel's representation includes only those judicial proceedings transpiring “subsequent”to her appointment, which under subsection (a)(2) begins with the § 2254 or § 2255 “post-conviction process.” Pp. 1485 – 1488.

(b) The Government's attempts to overcome § 3599's plain language are not persuasive. First, our reading of the statute does not produce absurd results. Contrary to the Government's contention, a lawyer is not required to represent her client during a state retrial following postconviction relief because the retrial marks the commencement of new judicial proceedings, not a subsequent stage of existing proceedings; state postconviction proceedings are also not “subsequent” to federal habeas proceedings. Second, the legislative history does not support the Government's argument that Congress intended § 3599 to apply only to federal defendants. Congress' decision to furnish counsel for state clemency proceedings reflects both clemency's role as the “ ‘fail safe’ of our criminal justice system,” Herrera v. Collins, 506 U.S. 390, 415, 113 S.Ct. 853, 122 L.Ed.2d 203, and the fact that federal habeas counsel are well positioned to represent their clients in clemency proceedings. Pp. 1484 – 1491.

503 F.3d 566, reversed.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C.J., and THOMAS, J., filed opinions concurring in the judgment. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which ALITO, J., joined.

Dana C. Hansen Chavis, Knoxville, TN, for petitioner.

William M. Jay, for the United States as amicus curiae, by special leave of the Court, supporting the judgment below.

Andrew J. Pincus, Charles A. Rothfeld, Mayer Brown LLP, Washington, DC, Dan M. Kahan, Yale Law School, New Haven, CT, Dana C. Hansen Chavis, Counsel of Record, Stephen M. Kissinger, Knoxville, TN, for Petitioner.

Robert E. Cooper, Jr., Attorney General & Reporter, State of Tennessee, Michael E. Moore, Solicitor General, Gordon W. Smith, Associate Solicitor General, Counsel of Record, Nashville, Tennessee, for Respondent.

Justice STEVENS delivered the opinion of the Court.

Petitioner Edward Jerome Harbison was sentenced to death by a Tennessee court in 1983. In 1997, after the state courts rejected challenges to his conviction and sentence, the Federal District Court appointed the Federal Defender Services of Eastern Tennessee to represent him in filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ During the course of that representation, counsel developed substantial evidence relating both to Harbison's culpability and to the appropriateness of his sentence. Although the courts did not order relief, the evidence proved persuasive to one Circuit Judge. See 408 F.3d 823, 837–846 (C.A.6 2005) (Clay, J., dissenting).

Shortly after his habeas corpus petition was denied, Harbison requested counsel for state clemency proceedings. In 2006, the Tennessee Supreme Court held that state law does not authorize the appointment of state public defenders as clemency counsel. State v. Johnson, No. M1987–00072–SC–DPE–DD (per curiam), 2006 Tenn. Lexis 1236, *3 (Oct. 6, 2006). Thereafter, Harbison's federally appointed counsel moved to expand the authorized scope of her representation to include state clemency proceedings. Relying on Circuit precedent construing 18 U.S.C. § 3599, which provides for the appointment of federal counsel, the District Court denied the motion, and the Court of Appeals affirmed. 503 F.3d 566 (C.A.6 2007).

We granted certiorari, 554 U.S. 917, 128 S.Ct. 2959, 171 L.Ed.2d 884 (2008), to decide two questions: (1) whether a certificate of appealability (COA) is required to appeal an order denying a request for federally appointed counsel pursuant to § 3599, and (2) whether § 3599(e)'s reference to “proceedings for executive or other clemency as may be available to the defendant” encompasses state clemency proceedings. We conclude that a COA is not necessary and that § 3599 authorizes federally appointed counsel to represent clients in state clemency proceedings.

I

We first consider whether Harbison was required to obtain a COA to appeal the District Court's order. The State of Tennessee and the United States as amicus curiae agree with Harbison that he was not.

The District Court's denial of Harbison's motion to authorize his federal counsel to represent him in state clemency proceedings was clearly an appealable order under 28 U.S.C. § 1291. See, e.g.,McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (reviewing the Court of Appeals' judgment denying a petition for the appointment of counsel pursuant to the statute now codified at 18 U.S.C. § 3599). The question is whether Harbison's failure to obtain a COA pursuant to 28 U.S.C. § 2253(c)(1)(A) deprived the Court of Appeals of jurisdiction over the appeal.

Section 2253(c)(1)(A) provides that unless a circuit justice or judge issues a COA, an appeal may not be taken from “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.” This provision governs final orders that dispose of the merits of a habeas corpus proceeding—a proceeding challenging the lawfulness of the petitioner's detention. See generally Slack v. McDaniel, 529 U.S. 473, 484–485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Wilkinson v. Dotson, 544 U.S. 74, 78–83, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). An order that merely denies a motion to enlarge the authority of appointed counsel (or that denies a motion for appointment of counsel) is not such an order and is therefore not subject to the COA requirement.

II

The central question presented by this case is whether 18 U.S.C. § 3599 authorizes counsel appointed to represent a state petitioner in 28 U.S.C. § 2254 proceedings to represent him in subsequent state clemency proceedings. Although Tennessee takes no position on this question, the Government defends the judgment of the Court of Appeals that the statute does not authorize such representation.

We begin with the language of the statute. Section 3599, titled “Counsel for financially unable defendants,” provides for the appointment of counsel for two classes of indigents, described, respectively, in subsections (a)(1) and (a)(2). The former states:

“[I]n every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time either—

“(A) before judgment; or

“(B) after the entry of a judgment imposing a sentence of death but before the execution of that judgment;

“shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).”

Subsection (a)(2) states:

“In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).”

The parties agree that subsections (a)(1) and (a)(2) make two different groups eligible for federally appointed coun...