Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct after Maples V. Thomas

By Zupac, Wendy Zorana | The Yale Law Journal, March 2013 | Go to article overview

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

INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct after Maples V. Thomas
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.