Chavez v. Sec'y

• Decision Date: 10 February 2014
• Docket Number: No. 14–10486,Non–Argument Calendar.,14–10486,n–Argument Calendar.
• Parties: Juan Carlos CHAVEZ, Plaintiff–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

742 F.3d 940

Juan Carlos CHAVEZ, Plaintiff–Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant–Appellee.

No. 14–10486
Non–Argument Calendar.

United States Court of Appeals,
Eleventh Circuit.

Feb. 10, 2014.

[742 F.3d 941]

Juan Carlos Chavez, Union CI–Inmate Legal Mail, Raiford, FL, pro se.

Scott A. Browne, Attorney General's Office, Tampa, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:14–mc–20119–JEM.
Before CARNES, Chief Judge, WILSON and MARTIN, Circuit Judges.

CARNES, Chief Judge:

Juan Carlos Chavez, a Florida inmate scheduled to be executed on February 12, 2014, appeals the district court's denial of his pro se request for the appointment of counsel. Through attorney Robert Norgard, who was appointed to represent Chavez during his initial federal habeas proceedings and has continued to represent him in both state and federal court, Chavez also seeks a stay of execution pending disposition of his appeal ¹ and the appointment of Norgard as appellate counsel.

I.

Chavez was convicted and sentenced to death in November 1998 for the kidnapping, sexual battery, and first-degree murder of a nine-year-old child. See Chavez v. State, 832 So.2d 730, 736–47 (Fla.2002). His convictions and sentence were affirmed on direct appeal by the Florida Supreme Court on November 21, 2002, see id. at 767, and the United States Supreme Court denied his petition for a writ of certiorari on June 23, 2003, see Chavez v. Florida, 539 U.S. 947, 123 S.Ct. 2617, 156 L.Ed.2d 637 (2003).

On May 23, 2003, exactly one month before the Supreme Court denied certiorari in his direct appeal, attorney John Lipinski was appointed to represent Chavez in his state post-conviction proceedings. Lipinski did not, however, file a state post-conviction motion on Chavez's behalf until July 19, 2004, which prevented that motion from tolling the one-year limitations period for seeking federal habeas relief because the federal deadline had already expired on June 23, 2004. See28 U.S.C. § 2244(d)(1)(A), (2). Even then, the state post-conviction motion filed by Lipinski

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was not properly sworn. At Chavez's request, Lipinski was removed as state collateral counsel and replaced with attorney Lee Weissenborn, who filed an amended state post-conviction motion on May 5, 2005. Weissenborn was later permitted to withdraw and Andrea Norgard was appointed to represent Chavez in the state proceedings. Andrea Norgard filed a second amended post-conviction motion on Chavez's behalf on October 4, 2006.

During the course of his initial state collateral proceedings, Chavez raised numerous claims of ineffective assistance of trial counsel, including that counsel failed to (1) locate a witness who could provide potentially exculpatory evidence, (2) consult with Chavez in preparation for the penalty phase of the trial, (3) investigate and present evidence that Chavez's waiver of his Miranda² rights was involuntary, and (4) present expert mental health testimony in mitigation at sentencing. See Chavez v. State, 12 So.3d 199, 204 (Fla.2009). After an evidentiary hearing, the state trial court denied Chavez's post-conviction motion on the merits and, with the assistance of Andrea Norgard's law partner and husband, Robert Norgard, Chavez appealed to the Florida Supreme Court.³ The state supreme court affirmed the denial of post-conviction relief on June 25, 2009, see id. at 214, and the United States Supreme Court again denied a writ of certiorari on November 2, 2009, see Chavez v. Florida, 558 U.S. 996, 130 S.Ct. 501, 175 L.Ed.2d 356 (2009).

Chavez, still represented by Norgard, filed a 28 U.S.C. § 2254 federal habeas petition in February 2010. On March 16, 2010, the district court officially appointed Norgard as federal habeas counsel under 18 U.S.C. § 3599. The court then dismissed the § 2254 petition as untimely under the one-year statute of limitations for seeking federal habeas relief, see28 U.S.C. § 2244(d)(1), and, in doing so, rejected Chavez's claim that he was entitled to equitable tolling of the limitations period based on the actions of his first two state-appointed attorneys, Lipinski and Weissenborn. See Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1063–65, 1070–72 (11th Cir.2011). We affirmed the dismissal of Chavez's § 2254 petition as time-barred, including the denial of equitable tolling, on July 25, 2011. See id. at 1073. Chavez has never claimed that he was entitled to equitable tolling based on the conduct of Andrea or Robert Norgard.

With the aid of federally appointed counsel Norgard, Chavez returned to state court and filed a successive motion for post-conviction relief on April 17, 2012, contending that Florida's capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). He also asserted a claim based on Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), which had been decided a month earlier, alleging that state post-conviction counsel were ineffective for failing to properly litigate his initial state collateral proceedings. The state trial court denied the motion. In affirming that denial, the Florida Supreme Court rejected Chavez's Martinez-based claim on the ground that Martinez did “not provide a new cause of action in state court proceedings” and, in any event, claims of ineffective assistance of collateral counsel are not cognizable in such proceedings. Chavez v. State, No. SC12–1470, 2013 WL 5629607 (Fla. Oct. 11, 2013).

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On January 2, 2013, Florida Governor Rick Scott signed Chavez's death warrant and the execution was set for Wednesday, February 12, 2014, at 6:00 p.m. Chavez, again through Norgard, filed a second successive state motion for post-conviction relief on January 9, 2014, raising an Eighth Amendment challenge to Florida's current lethal injection protocol. The state trial court denied that motion on January 15, 2014, and the Florida Supreme Court affirmed on January 31, 2014.

In the meantime, on January 10, 2014, Chavez filed a pro se request in the United States District Court for the Southern District of Florida for the appointment of counsel to represent him in federal court. Despite being continuously represented by Norgard in both federal and state court since his federal habeas proceeding began, Chavez asserted that he was “unrepresented in federal court” and that none of his state collateral attorneys were admitted to practice before the Southern District of Florida, this Court, or the United States Supreme Court. Chavez requested the appointment of “conflict free” counsel to investigate and present potential Martinez claims against his state collateral attorneys—Andrea Norgard, Robert Norgard, Weissenborn, and Lipinski. Interpreting Martinez to stand for the proposition that “criminal defendants in some circumstances can raise claims of inadequate assistance of counsel at initial-review collateral proceedings,” Chavez maintained that he was entitled to counsel “to investigate and challenge the efficacy of state collateral counsel.”

On January 15, 2014, the district court denied Chavez's request, which it treated as a motion for the appointment of counsel instead of as a motion for the substitution of another appointed attorney for Norgard. The court concluded that Chavez's request for counsel to investigate a possible Martinez claim was based on a “fundamental misunderstanding of the holding in Martinez,” which merely crafted a mechanism for excusing the procedural default of claims of ineffective assistance of trial counsel where state collateral counsel failed to properly preserve those claims in state court. See generally Arthur v. Thomas, 739 F.3d 611, 629–31 (11th Cir.2014) (explaining that the Martinez decision applies only to the issue of cause to excuse the procedural default of an ineffective assistance of trial counsel claim that occurred in a state collateral proceeding); Gore v. Crews, 720 F.3d 811, 816 (11th Cir.2013) (“By its own emphatic terms, the Supreme Court's decision in Martinez is limited to claims of ineffective assistance of trial counsel that are otherwise procedurally barred due to the ineffective assistance of post-conviction counsel.”). The district court also noted that, “even if Petitioner did have a valid Martinez claim,” investigating and presenting any such claim would be futile in light of the applicable statute-of-limitations bar and the general prohibition against filing successive § 2254 petitions. “Even if post-conviction counsel had been ineffective for failing to bring certain ineffective assistance of trial counsel claims ... in state court,” the district court remarked, none of those claims could be heard on the merits because they “would be subject to dismissal for lack of jurisdiction” and “because the statute of limitations for Petitioner's federal habeas had already expired.” See Arthur, 739 F.3d at 630 (holding that the Martinez decision has no application to the operation or tolling of the § 2244(d) statute of limitations).

On February 3, 2014, which was more than two weeks after the order denying his motion for counsel and only nine days before his scheduled execution, Chavez appealed that order. Three days later, Norgard filed in connection with the appeal a

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motion for a stay of execution pending disposition of the appeal and a motion for this Court to appoint him as Chavez's appellate counsel.

II.

An indigent state inmate seeking to challenge his death sentence in federal court is statutorily entitled to the appointment of counsel “in any post conviction proceeding under section 2254.” 18 U.S.C. § 3599(a)(2). The Supreme Court has held that the right to the appointment of counsel “includes a right to legal assistance in the preparation of a habeas corpus application” and thus “adheres prior to the filing of a formal, legally sufficient habeas corpus petition.”...