Hill v. State
| Decision Date | 13 October 2005 |
| Docket Number | No. CR 00-1210.,CR 00-1210. |
| Parties | Darrell Wayne HILL, Appellant, v. STATE of Arkansas, Appellee. In re the Federal Public Defender's Representation of Defendants Sentenced to Death in State Court. |
| Court | Arkansas Supreme Court |
Wilson, Engstrom, Corum & Coulter, by: Stephen Engstrom, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.
On May 20, 2005, the Federal Public Defender (FPD) filed a motion to recall the mandate in the case of Darrell Wayne Hill. This court denied the motion. See Hill v. State, 362 Ark. 659, 210 S.W.3d 123 (2005) (per curiam). In the Hill per curiam opinion, we raised the question of "by what authority the Federal Public Defender [was] representing defendants in capital cases in state court." Id. We listed four cases where this had happened: Engram v. State, CR99-928; Hill v. State, CR00-1210; Nance v. State, CR99-365; and Newman v. State, CR03-1257. All four cases involved death sentences for the defendants. We requested that the FPD advise this court by formal response of its authority for representing these defendants. Hill, supra. Thereafter, the FPD filed its Statement of Authority, and the State also filed its Response.
On August 3, 2005, this court granted the State's motion and dismissed without opinion the FPD's Rule 37 petition in Newman v. State. Justice Glaze of this court issued a concurring opinion wherein he agreed with the State that the FPD had no standing to appear on behalf of Newman on a Rule 37 petition. See Newman v. State, 363 Ark. 199, 211 S.W.3d 543 (2005) (Glaze, J. concurring).
A briefing schedule was set by this court in connection with the Hill per curiam and briefs were filed by the parties, followed by oral argument before this court. The arguments made in favor of FPD's authority can best be summarized as follows:
• Federal statutes and a federal district court order (General Order No. 49) give the FPD plenary authority to represent indigent capital defendants in state court.
• Under Courtney v. Butt, 264 Ark. 475, 572 S.W.2d 407 (1978), state courts cannot invoke state rules to question or deny legal representation provided by the federal government.
• Attorneys with the FPD are licensed to practice in Arkansas and can represent any clients of their choosing.
• After its appointment by the federal district court to represent capital defendants in federal habeas corpus matters, any necessary representation in state court proceedings is an ancillary matter.
• No federal case has ever held that the FPD cannot represent indigent defendants in state court.
• The status of the FPD, as counsel for indigent capital defendants, is similar to any pro bono or retained representation of criminal defendants.
• Whether federal funds are used for this purpose should be of no moment for state courts.
• Arkansas has no rule governing appointment of counsel for indigent capital defendants after the mandate has issued in state court, and as a result, FPD representation is reasonably necessary.
The State responds and makes these salient points:
• The FPD has not been appointed to represent these indigent capital defendants under Arkansas Rule of Criminal Procedure 37.5.
• Under In re Lindsey, 875 F.2d 1502 (11th Cir.1989), the FPD has no authority to appear in state court until appointed by state court to do so.
• Every federal court faced with the issue of FPD representation of indigent defendants in state court has held that FPD representation is limited to federal proceedings.
• The FPD should not receive federal funds for representing indigent defendants in state court under principles of comity and federalism.
We believe a historical perspective is necessary for an understanding of this matter. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Pub.L. No. 104-132 (1996). By this act, Congress chose to restrict federal habeas corpus review in exchange for the states' appointing competent counsel for indigent capital defendants for purposes of state post-conviction review. See Burke W. Kappler, Small Favors: Chapter 154 of the Antiterrorism and Effective Death Penalty Act, the States, and the Right to Counsel, 90 J.CRIM. L. & CRIMINOLOGY 467, 469 (2000).
In 1997, the Arkansas General Assembly enacted Act 925 of 1997 in response to the AEDPA. Act 925 is now codified at Ark. Code Ann. § 16-91-201 to 206 (Supp.2005). The General Assembly stated the purpose behind Act 925 as being compliance with the AEDPA "in an effort to obtain the benefits of that act concerning time limitations in which federal habeas corpus proceedings and appeals must be considered and decided . . . ." Ark.Code Ann. § 16-91-204 (Supp.2005).
Also in 1997, this court adopted Arkansas Rule of Criminal Procedure 37.5 in order to "opt in" to the benefits of AEDPA by setting criteria for appointed counsel for indigent capital defendants sentenced to death. We subsequently stated the purpose behind Rule 37.5 in our case law:
Rule 37.5 evolved from Act 925 of 1997, now codified at Ark.Code Ann. §§ 16-91-201 to -206 (Supp.1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, "in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing." Id. at 188-89, 964 S.W.2d at 185.
Echols v. State, 344 Ark. 513, 517, 42 S.W.3d 467, 469 (2001). See also Robbins v. State, 354 Ark. 1, 114 S.W.3d 217 (2003); Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). Hence, for an attorney to be appointed by an Arkansas state court to represent an indigent capital defendant who is sentenced to death, that attorney must satisfy the criteria set out in Rule 37.5.
To establish its authority to represent indigent state capital defendants in state courts, the FPD relies on the following statutory authority:
A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate judge or the court through appeal, including ancillary matters appropriate to the proceedings.
18 U.S.C. § 3006A(c).
Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including . . . all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.
21 U.S.C. § 848(q)(8).
In addition to these federal statutes, the FPD relies on General Order Number 49 issued by the Chief Judge of the United States District Court for the Eastern District of Arkansas, which states in part:
The Federal Public Defender Office is hereby appointed on ancillary matters appropriate to the proceedings in which the Federal Public Defender was previously appointed pursuant to an Order of this Court—provided it is apparent to the Federal Public Defender that no change in the client's financial condition has occurred which would render the person financially ineligible for appointment of counsel under the Criminal Justice Act and provided that the matter at hand will require substantial work by counsel and is significant enough to warrant appointment of counsel.
In addition to this authority, there is the longstanding requirement that an applicant for federal habeas corpus relief must exhaust the remedies available to the applicant in state court before federal relief can be granted. 28 U.S.C. § 2254(b)(1)(A). As a result of this requirement, the federal district courts in Arkansas have routinely held federal habeas corpus proceedings in abeyance or dismissed them where it appears that a state remedy has not been exhausted. This occurred in the Engram, Hill, Nance, and Newman cases mentioned in our Hill per curiam referenced above.
The existence of unexhausted state remedies has given rise to the question of representation for indigent capital defendants for purposes of exhausting those state remedies. Because efforts to pursue federal habeas corpus relief may be renewed following exhaustion of state remedies, assuming state relief is not forthcoming, the FPD and federal district courts in Arkansas have viewed these state proceedings as ancillary to federal habeas corpus relief. Indeed, by General Order No. 49, the Chief Judge for the Federal District Court for the Eastern District of Arkansas has said as much and relies on § 3006A(c), which makes reference to "ancillary matters appropriate to the proceedings." 18 U.S.C. § 3006A(c). The question then to be resolved is whether state proceedings are ancillary matters or whether the federal statutory reference is only to ancillary federal matters.
On this point, we are persuaded by the Eleventh Circuit's reasoning in In re Lindsey, supra. In Lindsey, a state prisoner sought a writ of mandamus against the federal district judge to appoint qualified counsel for state post-conviction review of unexhausted claims. 875 F.2d at 1502-1503. The Eleventh Circuit concluded that the state proceedings for which Lindsey sought assistance "are not procedural mechanisms employed within the context of a federal action to insure the protection of a person's rights in that action." Id. at 1506. The Lindsey court also noted that allowing the payment of fees under § 848(q)...
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