Juаn Carlos CHAVEZ, Plaintiff-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
No. 14-10486
United States Court of Appeals, Eleventh Circuit.
Feb. 10, 2014.
742 F.3d 940
Non-Argument Calendar.
Scott A. Browne, Attorney General‘s Office, Tampa, FL, for Defendant-Appellee.
Before CARNES, Chief Judge, WILSON and MARTIN, Circuit Judges.
Juan Carlos Chavez, a Florida inmate scheduled to be executed on February 12, 2014, appeals the district court‘s denial of his pro se request for the appointment of counsel. Through attorney Robert Norgard, who was appointed to represent Chavez during his initial federal habeas proceedings and has continued to represent him in both state and federal court, Chavez also seeks a stay of execution pending disposition of his appeal1 and the appointment of Norgard as appellate counsel.
I.
Chavez was convicted and sentenced to death in November 1998 for the kidnapping, sexual battery, and first-degree murder of a nine-year-old child. See Chavez v. State, 832 So.2d 730, 736-47 (Fla.2002). His convictions and sentence were affirmed on direct appeal by the Florida Supreme Court on November 21, 2002, see id. at 767, and the United States Supreme Court denied his petition for a writ of certiorari on June 23, 2003, see Chavez v. Florida, 539 U.S. 947, 123 S.Ct. 2617, 156 L.Ed.2d 637 (2003).
On May 23, 2003, exactly one month before the Supreme Court denied certiorari in his direct appeal, attorney John Lipinski was appointed to represent Chavez in his state post-conviction proceedings. Lipinski did not, however, file a state post-conviction motion on Chavez‘s behalf until July 19, 2004, which prevented that motion from tolling the one-year limitations period for seeking federal habeas relief because the federal deadline had already expired on June 23, 2004. See
During the course of his initial state collateral proceedings, Chavez raised numerous claims of ineffective assistance of triаl counsel, including that counsel failed to (1) locate a witness who could provide potentially exculpatory evidence, (2) consult with Chavez in preparation for the penalty phase of the trial, (3) investigate and present evidence that Chavez‘s waiver of his Miranda2 rights was involuntary, and (4) present expert mental health testimony in mitigation at sentencing. See Chavez v. State, 12 So.3d 199, 204 (Fla.2009). After an evidentiary hearing, the state trial court denied Chavez‘s post-conviction motion on the merits and, with the assistance of Andrea Norgard‘s law partner and husband, Robert Norgard, Chavez appealed to the Florida Supreme Court.3 The state supreme court affirmed the denial of post-conviction relief on June 25, 2009, see id. at 214, and the United States Supreme Court again denied a writ of certiorari on November 2, 2009, see Chavez v. Florida, 558 U.S. 996, 130 S.Ct. 501, 175 L.Ed.2d 356 (2009).
Chavez, still represented by Norgard, filed a
With the aid of federally appointed counsel Norgard, Chavez returned to state court and filed a successive motion for post-conviction relief on April 17, 2012, contending that Florida‘s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). He also asserted a claim based on Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), which had been decided a month earlier, alleging that state post-conviction counsel were ineffective for failing to properly litigate his initial state collateral proceedings. The state trial court denied the motion. In affirming that denial, the Florida Supreme Court rejected Chavez‘s Martinez-based claim on the ground that Martinez did “not provide a new cause of action in state court proceedings” and, in any event, claims of ineffective assistance of collateral counsel are not cognizablе in such proceedings. Chavez v. State, No. SC12-1470, 2013 WL 5629607 (Fla. Oct. 11, 2013).
In the meantime, on January 10, 2014, Chavez filed a pro se request in the United States District Court for the Southern District of Flоrida for the appointment of counsel to represent him in federal court. Despite being continuously represented by Norgard in both federal and state court since his federal habeas proceeding began, Chavez asserted that he was “unrepresented in federal court” and that none of his state collateral attorneys were admitted to practice before the Southern District of Florida, this Court, or the United States Supreme Court. Chavez requested the appointment of “conflict free” counsel to investigate and present potential Martinez claims against his state collateral attorneys—Andrea Norgard, Robert Norgard, Weissenborn, and Lipinski. Interpreting Martinez to stand for the proposition that “criminal defendants in some circumstances can raise claims of inadequate assistance of counsel at initial-review collateral proceedings,” Chavez maintained that he was entitled to counsel “to investigate and challenge the efficacy of state collateral counsel.”
On January 15, 2014, the district court denied Chavez‘s request, which it treated as a motion fоr the appointment of counsel instead of as a motion for the substitution of another appointed attorney for Norgard. The court concluded that Chavez‘s request for counsel to investigate a possible Martinez claim was based on a “fundamental misunderstanding of the holding in Martinez,” which merely crafted a mechanism for excusing the procedural default of claims of ineffective assistance of trial counsel where state collateral counsel failed to properly preserve those claims in state court. See generally Arthur v. Thomas, 739 F.3d 611, 629-31 (11th Cir. 2014) (explaining that the Martinez deсision applies only to the issue of cause to excuse the procedural default of an ineffective assistance of trial counsel claim that occurred in a state collateral proceeding); Gore v. Crews, 720 F.3d 811, 816 (11th Cir.2013) (“By its own emphatic terms, the Supreme Court‘s decision in Martinez is limited to claims of ineffective assistance of trial counsel that are otherwise procedurally barred due to the ineffective assistance of post-conviction counsel.“). The district court also noted that, “even if Petitioner did have a valid Martinez claim,” investigating and рresenting any such claim would be futile in light of the applicable statute-of-limitations bar and the general prohibition against filing successive § 2254 petitions. “Even if post-conviction counsel had been ineffective for failing to bring certain ineffective assistance of trial counsel claims ... in state court,” the district court remarked, none of those claims could be heard on the merits because they “would be subject to dismissal for lack of jurisdiction” and “because the statute of limitations for Petitioner‘s federal habeas had already expired.” See Arthur, 739 F.3d at 630 (holding that the Martinez decision has no application to the operation or tolling of the
On February 3, 2014, which was more than two weeks after the order denying his motion for counsel and only nine days before his scheduled execution, Chavez appealed that order. Three days later, Norgard filed in connection with the appeal a
II.
An indigent state inmate seeking to challenge his death sentence in federal court is statutorily entitled to the appointment of counsel “in any post conviction proceeding under
Although Chavez characterized his motion as a request for the appointment of federal counsel, and the district court treated it that way, Chavez was effectively seeking the substitution of counsel. That‘s because Norgard had been appointed to represent Chavez in his federal habeas proceedings and, by statute, was required to continue representing Chavez in all later stages of available post-conviction proceedings until his replacement by another attorney. See
When Chavez‘s request is properly viewed as a motion for the substitution of federally appointed counsel, it is clear that he was not entitled to the appointment of new counsel for the declared purpose of investigating and litigating a Martinez-based claim for relief because that claim would be futile. See Martel, 132 S.Ct. at 1289 (“The court was not required to appoint a new lawyer so Clair could file a futile motion.“). It would be futile because Martinez did not, as Chavez seems to suggest, create a freestanding claim for challenging a conviction or sentence based on the alleged ineffective assistance of post-conviction counsel. The Supreme Court has long held that there is no constitutional right to counsel in post-conviction proceedings, even in capital cases, which necessarily means that a habeas petitioner cannot assert a viable, freestanding claim for the denial of the effective assistance of counsel in such proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991); see also
The Supreme Court‘s decision in Martinez did not alter that longstanding Supreme Court precedent or statute. Instead, it reiterated them, expressly acknowledging that a habeas petitioner is precluded from “relying on the ineffectiveness of his postconviction attorney as a ground for relief.” Martinez, 132 S.Ct. at 1320 (quotation marks omitted). What the Martinez deсision did—and the only thing it did—was create a narrow, equitable exception to the general rule that a petitioner cannot rely on the ineffectiveness of collateral counsel to serve as cause for excusing the procedural default of a claim in state court, thereby permitting federal habeas review of the merits of that claim. Id. at 1315-20. As the Court put it: “Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 1320.
Since Martinez was decided, we have repeatedly underscored its narrow scope. See Arthur, 739 F.3d at 629 (explaining that Martinez “announced a ‘narrow exception’ to Coleman‘s procedural default rule in the limited circumstances where a state law ‘requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding‘” and, among other things, state collateral counsel “was ineffective by not raising ineffective-trial-counsel-claims” in the state proceedings); Gore, 720 F.3d at 816 (“By its own emphatic terms, the Supreme Court‘s decision in Martinez is limited to claims of ineffective assistance of trial counsel that are otherwise procedurally barred due to the ineffective assistance of post-conviction counsel.“). We have emphasized that the equitable rule established in Martinez applies only “to excusing a procedural default of ineffective-trial-counsel claims” and, for that reason, hаs no application to other matters like the one-year statute of limitations period for filing a § 2254 petition. Arthur, 739 F.3d at 630. So, to the extent that Chavez requested the appointment of new counsel to investigate and present a freestanding Martinez claim for relief based on the ineffective assistance of his state collateral counsel, any such claim would be futile because it does not constitute a valid ground for habeas relief. See
And to the extent Chavez requested new counsel to raise any claim of ineffective assistance of trial counsel that was not properly preserved in state court due to the ineffectiveness of state collateral counsel, substituting counsel for purposes of raising that claim would also be futile. The claim would be both timebarred under
Likewise, a district court has no jurisdiction to consider a claim presented in a second or successive § 2254 petition unless the court of appeals first grants authorization to file such a petition, which it may do only where the claim either “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or on facts that “could not have been discovered previously through the exercise of due diligence” and that are sufficient to show that “no reasonable factfinder would have found the applicant guilty of the underlying offense.”
Finally, even if Norgard had never been aрpointed as federal habeas counsel, or had somehow been relieved from that appointment, so that Chavez‘s motion could accurately be construed as a motion for the appointment of counsel, Chavez would still not be entitled to have counsel appointed to pursue claims that could form the basis for federal habeas relief. While it is true, as Chavez notes, that “a substantive, merits assessment of [an actual or proposed § 2254 petition] is irrelevant to the appointment of counsel” under § 3599, Weeks v. Jones, 100 F.3d 124, 127 (11th Cir.1996), that does not preclude courts from considering whether a proposed petition would clearly be barred for a reason unrelated to the merits of any substantive claim for relief, such as a statute-of-limitations bar. See In re Hearn, 376 F.3d 447, 455 (5th Cir.2004) (“[P]otential procedural bars may be so conclusive that the right to counsel under [§ 3599] becomes unavailable.“); Cantu-Tzin v. Johnson, 162 F.3d 295, 298 (5th Cir.1998) (“Appointment of counsel for a capital-convicted defendant would be a futile gesture if the petitioner is time-barred from seeking federal habeas relief.“). Because Chavez cannot bring any Martinez-based claims within the one-year statute of limitations for seeking federal habeas relief, and because binding precedent forecloses any argument that Martinez can excuse or equitably toll that limitations period, the appointment of counsel to investigate and pursue such claims would be a wholly futile gesture that renders § 3599‘s right to federally-
For these reasons, we AFFIRM the denial of Chavez‘s request for the appointment of counsel, regardless of whether that request is properly treated as a motion for substitution of counsel. We DENY AS MOOT Chavez‘s application for a stay of execution pending the outcome of this appeal5 and for the appointment of counsel on appeal.
MARTIN, Circuit Judge, concurring in the judgment:
Mr. Chavez appeals the denial of the District Court‘s denial of his pro se motion to appoint him conflict-free counsel to represent him in his warrant litigation and to investigate and present claims against his state postconviction counsel pursuant to Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). He also seeks a stay of his imminent execution on February 12, 2014 at 6:00 p.m.
The Majority opinion properly analyzes Mr. Chavez‘s pro se motion as one for substitution of counsel under Martel v. Clair, 565 U.S. 648, 132 S.Ct. 1276, 182 L.Ed.2d 135 (2012). The U.S. District Court for the Southern District of Florida appointed Robert Nоrgard on March 16, 2010 to represent Mr. Chavez in his initial federal habeas corpus proceedings, pursuant to
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 pretrial proceedings, trial, sentencing, motions for new trial, appеals, applications for writ of certiorari to the Supreme Court of the United
States, and 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.
Id. Mr. Norgard, therefore, is required by statute to continue representing Mr. Chavez “in all lаter stages of available post-conviction proceedings,” Maj. Op. at 944, as well as “other appropriate motions and procedures ... as may be available to the defendant.”
I also agree with the Majority that Clair requires us to apply the “interests of justice” standard to motions for substitution of counsel brought by indigent capital defendants who were appointed counsel under § 3599. Clair, 132 S.Ct. at 1281, 1283-87. This is the same standard federal courts apply “in non-capital cases under a related statute,
It is the peculiar “context” of Mr. Chavez‘s case that leads me to conclude the District Court did not abuse its discretion in denying Mr. Chavez‘s pro se request for substitution of counsel. Although Clair noted “any attempt to provide a general definition of the [interests of justice] standard would” likely be unhelpful in light of the need for a context-specific inquiry, it did note that one of the relevant factors was “the timeliness of the motion.” Id. It is the timing of Mr. Chavez‘s motion—filed after his death warrant was signed and approximately two and a half years after this Court affirmed the dismissal of his initial § 2254 petition2—that is compelling to me.
I am also aware that this Circuit‘s binding precedent all but forecloses any attempt by Mr. Chavez to reopen his habeas corpus proceedings by filing a
I am less confident, however, that conflict-free counsel could not meaningfully assist Mr. Chavez in other ways. For example, Mr. Chavez, like all capital habeas petitioners, is free to file an original habeas corpus petition in the United States Supreme Court. See Felker v. Turpin, 518 U.S. 651, 660, 116 S.Ct. 2333, 2338, 135 L.Ed.2d 827 (1996) (concluding that AEDPA did not repeal the Supreme Court‘s “authority to entertain original habeas petitions.“); see also id. at 661, 116 S.Ct. at 2339 (rejecting suspension of the writ challenge to AEDPA‘s gatekeeping system in part because the Supreme Court still retained jurisdiction to hear original habeas corpus petitions). We know, for example, that the Supreme Court‘s original habeas corpus jurisdiction is not restricted by
Nor has Mr. Chavez or his counsel specifically requested the assistance of conflict-free counsel to pursue state clemency. Although the Governor of Florida has previously denied Mr. Chavez clemency, I am not aware of any state law which limits his ability to seek further relief by way of clemency or precludes him from seeking clemency on any basis.