SCOTUS Warns About Counsel-Naming Delay

WASHINGTON (CN) - Two judges spoke out Monday on why the Supreme Court shot down an appeal from a habeas petitioner who has not been appointed counsel in 17 years.

Stephen Moreland Redd was sentenced to death in California in 1997 for first-degree murder, according to a 9th Circuit order published this past April.

The three-judge panel denied Redd a certificate of appeal in that order, and the Supreme Court rejected Redd's petition for a writ of certiorari Monday.

Justice Sonia Sotomayor wrote separately to emphasize that the "undoubtedly troubling" circumstances of Redd's case simply do not reveal that he "has been denied all access to the courts."

"Seventeen years after petitioner was first sentenced to death, and more than four years after his conviction and sentence were affirmed on direct appeal, petitioner has not received counsel to represent him in his state habeas corpus proceedings - counsel to which he is entitled as a matter of state law," she wrote, joined by Justice Stepehen Breyer. "He has suffered this delay notwithstanding the California Supreme Court's observation that '[i]deally, the appointment of habeas corpus counsel should occur shortly after an indigent defendant's judgment of death,' and our own general exhortation that '[f]inality is essential to both the retributive and the deterrent func­tions of criminal law.' At the same time, the California Su­preme Court refuses to consider capital inmates' pro se submissions relating to matters for which they have a continuing right to representation. Petitioner therefore remains in limbo: To raise any claims challenging his conviction and sentence in state habeas proceedings, he must either waive his right to counsel or continue to wait for counsel to be finally appointed.

Still, "a number of alternative avenues may remain open to" Redd, Sotomayor wrote.

"He may, for example, seek appoint­ment of counsel for his federal habeas proceedings," she continued. "And he may argue that he should not be required to exhaust any claims that he might otherwise bring in state habeas proceedings, as 'circumstances exist that render [the state corrective] process ineffective to protect' his rights. Moreover, petitioner might seek to bring a 42 U.S.C. §1983 suit contending that the state's failure to provide him with the counsel to which he is entitled violates the due process clause. Our denial of certiorari reflects in no way on the merits of these possible arguments. Finally, I also note that the state represents that state habeas counsel will be appointed for petitioner '[i]n due course' - by which I hope it means, soon." (Emphasis in original.)

In its order, the 9th Circuit had noted that Redd sought a federal court order mandating that the "California Supreme Court accept and file his pro se motion to recall the remittitur on direct appeal for consideration of eyewitness identification and search issues."

"Redd insists the California Supreme Court's alleged refusal to consider his recall of the remittitur motion violates his rights to due process, equal protection, and access to the courts," the order says.

For the 9th Circuit, however, the recall of a remittitur on direct appeal "raises an issue of state law that is not cognizable on federal habeas."

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