High Court Reviews Death Row Conviction

WASHINGTON (CN) - The Supreme Court on Monday reviewed whether a death-row inmate can challenge his detention in federal court after his state-appointed attorney missed the deadline for such a challenge, despite the convict's anxious badgering. Florida, where the man was sentenced, argued that allowing leniency for such "garden variety" attorney negligence cases would allow a wave of new death-penalty challenges. Justice Stephen Breyer looked appalled and said, "We have a problem with the bar, don't we?"

Death-row inmate Albert Holland's initial lawyer, Bradley Collins, missed the deadline to file a habeas corpus petition despite having almost a year to prepare and despite persistent requests from Holland, who was convicted in Florida of murdering a police officer, armed robbery, sexual battery and attempted murder. He was sentenced to death in 1991.

Holland's ex-lawyer stopped replying to Holland's letters, and neglected to keep him informed of the progress of his case.

Florida lawyer Todd Scher, with his own office, was appointed by the Supreme Court to represent Holland. He argued that Holland was stuck with his attorney which kept him from filing motions on his own behalf even after "complete abandonment" by his lawyer. Scher said the lawyer's conduct constitutes gross negligence, as opposed to mere negligence, and therefore merits equitable tolling -- or acceptance of a late habeas petition.

The Supreme Court has never held whether equitable tolling is available under the 1996 Antiterrorism and Effective Death Penalty Act, which sets the deadline.

Justice Samuel Alito criticized Scher's arguments as impractical. "The difference between mere negligence and gross negligence, that's an ephemeral distinction," he said. "But that's the one you one you think we should draw."

Justice Anthony Kennedy said he didn't know if it would be fair to distinguish between negligence and gross negligence if they lead to the same result.

Chief Justice John Roberts voiced the same concern. "If the lawyer just miscalculated and was off by one day, this case comes out the other way in your view, right?" he asked of Holland's lawyer.

The lawyer replied that if such were the case, the court would be correct in rejecting the plea. "That's an unfortunate mere mistake," Scher said, and contrasted it with the "complete abandonment" of his client.

Roberts acknowledged the persistence that Holland showed in petitioning the federal court, but seemed to remain unswayed. "I have trouble understanding why that should make a difference," he said. "Why should he be in better shape than somebody who says, 'I don't know anything about this, I need a good lawyer, I'm trusting you?'"

"It's very hard to argue against equitable tolling," Roberts said. "But at the same time, I think you do need a constraining principle that it doesn't do away with the statute of limitations."

Florida Solicitor General Scott Makar argued that the deadlines should not be manipulated, saying that if it were, many other "garden variety" attorney negligence cases like it could follow.

Breyer criticized the broad sweep of Makar's argument. "You mean to imply that earthquake, fire, flood, mad postman burns mail truck, et cetera?" he asked.

Makar ultimately said that natural disasters could merit equitable tolling.

Breyer pounced. "If you are going to read it `in some cases you can do it,' then I guess we are at a discussion of, is this one of those cases," he said.

Alito offered another scenario. "What if the lawyer lies to the client and the client says 'my time is running out, have you filed federal habeas petition?'" he asked, "And the lawyer says, 'yes, I filed it and here it is.' And it has a forged date stamp on it?"

Makar replied that the court would still not be able to grant leniency.

But Breyer expressed sympathy for such cases.

"It's a little hard to see why you couldn't have a narrow standard but just not rule out the possibility," he said. "There are odd thing that happen in life. And just say. `go look for this, see if it's truly extraordinary, if it's fair, if he was diligent,' what about that?"

Roberts followed up. "Why isn't it extreme attorney incompetence to miss a deadline?" he asked.

Makar replied that such incompetence is "run of the mill."

After filing the appeal to the Florida Supreme Court in 2003, Holland's lawyer did not reply to Holland's requests for information on the appeal, and in 2004, Holland tried to get rid of his lawyer, but his motion was denied.

In 2005, Holland wrote to his lawyer from prison, asking, "If the Florida Supreme Court denies my [appeals], please file my writ of habeas corpus petition, before my deadline to file it runs out." The lawyer did not respond to that letter or a second letter asking if he had begun the habeas corpus petition.

The Florida Supreme Court denied Holland's appeals at the end of 2005, leaving him with two weeks to file a petition with the federal court. But his lawyer did not notify him of the decision, and did not file a petition.

On January of 2006, Holland wrote to his lawyer asking if there was any news on the appeal, and mentioned that he was concerned about the deadline to file with the federal court. Holland then did his own research and discovered the ruling after he was allowed access to the prison's documents. He immediately wrote a late habeas petition and mailed it the next day.

Holland was eventually able to get a new lawyer. The attorney tried to get the federal court to accept Holland's habeas petition in light of the "extraordinary circumstances that were [both] beyond his control and unavoidable even with diligence." But the district court refused the plea for equitable tolling.

The 11th Circuit then denied Holland's appeal, saying it even a case of attorney "gross negligence" would not be a sufficient reason.

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