Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct after Maples V. Thomas
Zupac, Wendy Zorana, The Yale Law Journal
NOTE CONTENTS INTRODUCTION I. THE RIGHT TO COUNSEL II. PERFORMANCE-BASED AND RELATIONSHIP-BASED MODELS IN THE LAW OF PROCEDURAL DEFAULT A. Two Frameworks for Analyzing Attorney Misconduct B. The Role of the Two Models in the "Procedural-Default" Doctrine C. Postconviction Counsel in the States III. THE COURTS' EFFORTS TO EXEMPT HABEAS PETITIONERS FROM THE MISTAKES OF THEIR ATTORNEYS A. The Development of the Equitable-Tolling Jurisprudence B. Negligent Lawyers Reach the Supreme Court C. The Law Governing Postconviction Counsel After Maples and Martinez IV. THE FUTURE OF THE RELATIONSHIP-BASED MODEL A. A Normative Analysis of the Relationship-Based Model B. Post-Link Applications of the Relationship-Based Model 1. Communication 2. Weighing the Harm to the Plaintiff Against the Prejudice to the Defendant 3. Effective or Virtual Abandonment C. Application of Rule 60(b)(6) Principles to Habeas Cases CONCLUSION
Many habeas petitioners have learned that having a bad lawyer can be worse than having no lawyer at all. Take, for example, the story of Ricky Kerr's near execution. The lawyer appointed to represent Kerr in his state postconviction proceedings filed a three-page habeas corpus application, containing just one legal argument, which did not actually challenge the validity of Kerr's trial or sentence. (1) His application was dismissed summarily by the Texas courts. As Kerr's execution date approached, his lawyer began to suffer severe health problems and stopped worldng on the case altogether. (2) Eventually, another lawyer stepped in on Kerr's behalf to file an emergency motion with the Texas Court of Criminal Appeals (CCA). (3) The motion contained an affidavit from the previous attorney confessing that he may have committed a "gross error in judgment," and that he was perhaps "not competent to represent Mr. Kerr in a death-penalty case." (4) Nonetheless, the CCA denied Mr. Kerr's application, prompting one judge to proclaim, "If applicant is executed as scheduled, this Court is going to have blood on its hands ...." (5)
Other lawyers have ended their clients' hopes of relief by failing to file applications within the statutory deadlines.6 For example, the lawyers for Roger Keith Coleman, a death-row inmate in Virginia, failed to file a notice of appeal with the Virginia Supreme Court within the required thirty-day window after the state court denied his habeas application. (7) The Supreme Court held that Coleman's lawyers' failure to file a timely notice of appeal foreclosed further review of his constitutional claims. (8)
The Coleman Court reasoned that because "the attorney is the petitioner's agent" within the scope of the litigation, "the petitioner must 'bear the risk of attorney error.'" (9) Under this rule, because habeas petitioners do not have a constitutional right to counsel during postconviction proceedings, (10) petitioners whose lawyers filed woefully inadequate or untimely habeas petitions typically did not have any remedy. However, in a trio of recent decisions-Holland v. Florida, (11) Maples v. Thomas, (12) and Martinez v. Ryan (13)--the Court injected some flexibility into the strict Coleman rule and fashioned remedies for habeas petitioners with negligent lawyers. Unfortunately, the Court's reasoning from case to case has been inconsistent and murky and has given little guidance to lower courts concerning the scope of the remedy.
This Note offers a new approach to understanding the Court's jurisprudence in this area. I argue that much of the confusion stems from the fact that the Court has vacillated between two different analytic models in evaluating attorney conduct--a performance-based model and a relationship-based model. These models, as explained in Part II of this Note, address different aspects of an attorney's conduct. The performance-based model, which examines a lawyer's efforts on behalf of his client, is more robust because it imposes a baseline standard of reasonableness on an attorney's work. …