Lead Opinion
Thе issue in this appeal is whether the district court abused its discretion when it ruled that the decision in Holland v. Florida,
I. BACKGROUND
Paul Howell was a leader of an extensive and sophisticated operation to sell crack cocaine across Florida, Alabama, Mississippi, Georgia, North Carolina, and South Carolina. United States v. Mothersill,
By October 1991, Howell had taken over the supervisory role in the drug operation from Patrick, who was incarcerated, and Howell became concerned that Bailey would report the murder of Tillman to the authorities. Id. After Bailey complained to Howell that she needed a microwave to warm milk for her sick baby, Howell paid a friend to buy a microwave from Sears. Howell then constructed a pipe bomb and placed it in the microwave, which he gift-wrapped for delivery to Bailey. Howell paid Lester Watson to deliver the gift-wrapped pаckage to Bailey in a rental car.
On February 1, 1992, Lester Watson and Curtis Williams were driving the rental car on Interstate Highway 10 when they were stopped by a Florida Trooper, James Fulford, for speeding. After Fulford determined that Watson did not have a driver’s license, two local deputies arrived to arrest him. Watson gave the officials permission to search the car, and the deputies took Watson and Williams to the Jefferson County jail. Because the rental car was registered to Howell, the dispatcher called him to inquire whether the car was stolen. Howell told the dispatcher that he had given Watson permission to drive the car, and the dispatcher informed Howell that the car would be impounded.
Howell did not warn anyone about the pipe bomb in the car. When Fulford removed the gift-wrapped microwave from the trunk and attempted to open it, the bomb exploded. The bomb severed Ful-ford’s left leg and nearly severed his right leg. Fulford later died from his injuries.
A Florida jury found Howell guilty of first-degree murder and of making, possessing, placing, or discharging a destructive device or bomb. Howell v. State,
The trial court imposed the death penalty. Id. The trial court found the following five aggravating factors: (1) Howell knowingly created a great risk of death to many persons; (2) Howell committed the murder while engaged in the unlawful making, possessing, placing, or discharging of a destructive device or bomb; (3) Howell committed the murder to avoid or prevent a lawful arrest; (4) Howell murdered a law enforcement officer engaged in the performance of his official duties; and (5) Howell committed the murder in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. Id. The trial court found the following five statutory and nonstatutory mitigating factors: (1) Howell had no significant history of criminal activity; (2) the murder was committed while Howell was under the influence of extreme mental or emotional disturbance; (3) Howell had served in the military and received an honorable discharge; (4) Howell behaved well as a pretrial detainee; and (5) Howell was a good family .man. Id. The trial court determined that the aggravating factors far outweighed the mitigating factors, but the trial court declined to impose a separate sentence for the construction of the bomb because the two convictions were based on the same underlying conduct. Id.
On direct appeal, the Supreme Court of Florida affirmed Howell’s conviction and sentence. See id. at 683. The Supreme Court of the United States then denied Howell’s petition for a writ of certiorari on June 26, 1998. Howell v. Florida,
A Florida court then appointed Danielle Jorden as Howell’s postconviction counsel, and she filed a motion for an extension of time to file for state collateral review. The state court granted an extension of time that allowed Jorden to file a motion for collateral review by August 30, 1999. Jorden erroneously believed that the motion for an extension of time would also toll the federal limitations period. Howell,
Jorden filed Howell’s motion for state collateral review on August 30, 1999. The trial court denied Howell’s motion, and the Supreme Court of Florida affirmed. Howell v. State,
On July 26, 2004, Howell filed a federal petition for a writ of habeas corpus. In his petition, Howell alleged that he had
On January 18, 2013, the Governor of Florida, Rick Scott, signed a warrant for Howell’s execution to occur on Tuesday, February 26, 2013, at 6:00 p.m., but on February 20, 2013, Howell filed an emergency motion for relief from judgment in the district court. See Fed.R.Civ.P. 60(b). The district court denied Howell’s motion under Rule 60(b) as untimely, and the district court ruled that, even if the motion were timely, Howell was not entitled to relief under Rule 60(b)(6). The district court rejected the argument that the intervening change in the law effected by Holland, which held that attorney behavior far more serious than negligence might entitle a prisoner to relief from a judgment, was an extraordinary circumstance that would allow the court to reopen a judgment.
On February 25, 2013, the district court issued a certificate of appealability. That certificate was limited to the question whether the decision of the Supreme Court in Holland, is an extraordinary circumstance under Rule 60(b)(6) sufficient to justify the reopening of the final judgment of dismissal. Based on Eleventh Circuit Rule 22—4(a)(7), we entered a temporary stay of execution pending consideration of the merits of this appeal.
II. STANDARD OF REVIEW
We review the denial of a motion for relief from judgment under Rule 60(b) for an abuse of discretion. Cano v. Baker,
III. DISCUSSION
A prisoner whose petition for a writ of habeas corpus has been denied may file a motion, under Rule 60(b), to challenge “some defect in the integrity of the federal habeas proceedings,” but not “to add a new ground for relief.” Gonzalez v. Crosby,
The Supreme Court has explained that extraordinary circumstances that warrant the reopening of a judgment “will rarely oсcur in the habeas context,” Gonzalez,
The district court did not abuse its discretion when it read Gonzalez to mean that the change of law in Holland was not an extraordinary circumstance. Like the decision in Artuz, the decision in Holland altered the interpretation of the statute of limitations for a petition for a writ of habeas corpus: The Supreme Court explained that a per se rule that “even attorney conduct that is grossly negligent can never warrant [equitable] tolling absent bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part,” was “too rigid.” Holland,
Howell argues that Gonzalez does not govern his motion because the Supreme Court in that appeal also “placed heavy emphasis on the petitioner’s ‘lack of diligence’ in failing to seek further review at the time that his original [ ] petition was denied,” but the district court did not abuse its discretion when it read Gonzalez to hold otherwise. In Gonzalez, the Court explained that the prisoner had “abandoned any attempt to seek review of the District Court’s deсision on this statute-of-limitations issue” before the Court decided Artuz. Gonzalez,
IV. CONCLUSION
The denial of Howell’s motion for relief from judgment is AFFIRMED.
Concurrence Opinion
specially concurring:
I agree that, under our precedent, it cannot be said that the district court abused its discretion in dismissing Mr. Howell’s Rule 60(b)(6) motion. However, for the reasons articulated in my concurring opinion in Hutchinson v. Florida,
Here, Mr. Howell appears to have color-able claims that both his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional. I continue to believe that it is unconstitutional and immoral for death row inmates to lose a fundamental constitutional right because of their attornеy’s errors, especially when they are as egregious as those we deal with here.
Concurrence Opinion
concurring:
I concur in and join the Court’s opinion. Because Mr. Howell asserts that he would be the first person in Florida to be executed without having his federal habeas petition reviewed on the merits, I write separately. In my view, Mr. Howell would not have been entitled to relief even if the three claims raised in his petition received full federal habeas review.
I
Mr. Howell argues that his trial counsel, Frank Sheffield, Esq., rendered ineffective assistance because he failed to present an “intervening cause” defense at either the guilt or penalty phases of his trial. Mr. Howell contends that there was a reasonable probability that the jury would have acquitted him, convicted him of a lesser-ineluded-offense, or recommended a sentence of life imprisonment had Mr. Sheffield presented evidence that Trooper Fulford violated Florida Highway Patrol policy by opening the package containing the bomb-rigged microwave oven. According to Mr. Howell, Trooper Ful-ford’s actions were an unforeseeable, intervening cause that broke the chain of causation and either nullified specific intent entirely or mitigated culpability.
In order to prevail on this claim, Mr. Howell “must show that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington,
As to performance, Mr. Howell has failed to explain how Mr. Sheffield’s deci
With respect to prejudice, Mr. Howell conceded in his state post-conviction proceeding that Trooper Fulford’s actions “would not have been an intervening cause as a matter of law....” Howell v. State,
In sum, Mr. Howell has not established deficient performance or prejudice. This ineffective assistance of counsel claim therefore fails on the merits.
II
Mr. Howell contends that the penalty phase of his trial violated the Sixth Amendment because it was the trial court—with only a sentencing recommendation from the jury—which made the necessary findings of fact to impose the death penalty. He believes that this type of sentencing procedure, codified at Fla. Stat. § 921.141 (1993), is unconstitutional under Apprendi v. New Jersey,
Nevertheless, Mr. Howell contends that he should be able to rely on Apprendi and Ring because Blakely v. Washington, 542
Ill
Mr. Howell asserts that he was denied effective assistance of counsel because Mr. Sheffield had a conflict of interest and was not removed as his attorney. When a defendant asserts a conflict of interest claim, we are not always required to conduct the two-step analysis under Strickland for ineffective assistance of counsel. See Burger v. Kemp,
A
Initially, Mr. Sheffield was appointed to represent Mr. Howell in both his federal and state criminal prosecutions. In January of 1993, before the federal trial began, Mr. Sheffield’s wife claimed that she received a call at the office, in which the caller stated, “[I]f Paul Howell goes down, Mr. Sheffield is going down also.” Appellant’s Brief at 4. Mr. Sheffield contacted law enforcement officials, who began tо investigate the claim. In addition, he petitioned to withdraw from Mr. Howell’s federal case, citing his concerns for his family’s safety and his difficulties in communicating with his client. The federal district court granted Mr. Sheffield’s request, and William Pfeiffer, Esq., was appointed in his place. Law enforcement later concluded, following an investigation into the matter, that no threatening call had actually been made to Mr. Sheffield’s office.
On March 15, 1993, Mr. Howell sent a letter to the state trial court. He claimed that Mr. Sheffield was ineffective due to a failure to communicate and a lack of trust. He also requested that the substitute federal counsel, Mr. Pfeiffer, be appointed as substitute counsel for his state dеath penalty case. Three days later, the state filed a motion to disqualify Mr. Sheffield. The motion referenced the threatening phone call and statements by Mr. Sheffield that Mr. Howell was being uncooperative. The trial court held a hearing “to determine whether or not there [was] reasonable cause to believe that [Mr. Sheffield was] not rendering effective assistance to [Mr. Howell].” Nelson v. State,
At the hearing, Mr. Sheffield indicated that he had no outstanding safety concerns and was willing to continue representing Mr. Howell. He also informed the trial court about his experience with death penalty cases and pointed out that Mr. Pfeif-
On June 4,1993, the state filed a motion for rehearing and attached the transcript from the hearing on Mr. Sheffield’s motion to withdraw in federal court. Those transcripts provided additional information about the alleged threat, Mr. Sheffield’s safety concerns at the time, and Mr. Sheffield’s belief that he could not ethically represent Mr. Howell in the federal case under those circumstances. The trial court held a hearing to discuss this additional evidence on November 19, 1993. At the hearing, Mr. Sheffield acknowledged that he had difficulties communicating with Mr. Howell on discovery matters in the federal case and that the alleged telephone threat led to his request to withdraw. But he stated that there were no such communication issues in the state case,
Mr. Howell also testified at the hearing. He indicated that there were still concerns in the wake of the alleged phone threat because Mr. Howell’s family members were upset by insinuations that they may have orchestrated the whole thing. In response, Mr. Sheffield said that he did not share these concerns and that they would not impact his ability to represent Mr. Howell. Based on this testimony, the trial court fоund that (1) “[Mr. Howell] and Mr. Sheffield appeared] to be able to communicate,” (2) “Mr. Sheffield [was] probably as good [an attorney] as [Mr. Howell was] going to get,” and (3) “it would certainly be to [Mr. Howell’s] benefit to have [Mr. Sheffield] represent [him].” Id. at 679. The trial court did, however, give Mr. Howell an opportunity to respond, and Mr. Howell only said that he left the decision to the court. At that point, the trial court concluded that there was “no reason to disqualify Mr. Sheffield from representing Mr. Howell” and denied the state’s motion for rehearing. Id. That decision was later upheld by the Florida Supreme Court. See id. at 677-79.
In my view, the Florida Supreme Court’s decision on this issue was not an unreasonable application of Supremе Court precedent necessitating reversal under the applicable deferential standard. Habeas relief would only be warranted if Mr. Howell “demonstrate[d] that an actual conflict of interest existed that adversely affected [Mr. Sheffield’s] performance.” See Burger,
Instead, Mr. Howell relies on the presumption that, because the federal district court determined that Mr. Sheffield had a conflict of interest, the state trial court necessarily had to reach the same conclusion. See Habeas Corpus Petition [D.E. 2] at 19 (“This determination had already been made by the Federal court judge. It is preposterous to assume that the conflict was only in that courtroom and did not extend to the state court as well.”). But this argument, if anything, only establishes that there was a mere possibility of a conflict of interest in Mr. Howell’s state court case. And that does not suffice to make out a Sixth Amendment violation. See Cuyler v. Sullivan,
B
In September of 1994, Mr. Sheffield filed a motion claiming that Mr. Howell was incompetent to proceed to trial because Mr. Sheffield believed that an insanity defense was Mr. Howell’s only viable option. Mr. Howell, however, did not want to pursue an insanity defense. At a hearing, the trial court concluded that Mr. Howell had competently indicated that he did not want to pursue an insanity defense, and that the decision on whether to do so was ultimately his to make. Mr. Sheffield agreed to abandon the insanity defense.
On the eve of trial, Mr. Howell wrote a letter to the trial court questioning Mr. Sheffield’s ability to provide effective representation due to irreconcilable differences stemming from Mr. Sheffield’s prior insistence on relying on an insanity defense. The trial court found that Mr. Howell’s concerns had already been addressed, Mr. Sheffield had agreed to adhere to Mr. Howell’s preference to forego an insanity defense, and, consequently, there was no basis to replace Mr. Sheffield. The case then proceeded to trial.
At trial, Mr. Howell again complained to the trial court about Mr. Sheffield’s performance. He believed that Mr. Sheffield was unprepared and ignored his suggestions. Mr. Sheffield responded that, in his professional judgment, it was not beneficial to challenge certain evidence, as Mr. Howell wished, because that evidence would later come in anyway. The trial court informed Mr. Howell that Mr. Sheffield’s approach was not uncommon in criminal cases and concluded that there was no need to appoint new counsel.
Because these disagreements with Mr. Sheffield did not create a conflict of interest, Mr. Howell is only entitled to relief if he can establish prejudice under Strickland. See Burger,
C
During jury selection for Mr. Howell’s state trial, the state noted for the record that Mr. Sheffield had consulted with Robert Rand, Esq., the attorney for co-defendant Patrick Howell,
As an initial matter, I note that the Florida Supreme Court failed to address this claim when it reviewed Mr. Howell’s state post-conviction petition. See Howell,
Nevertheless, it is my view that, under these facts, Mr. Howell waived any claim to ineffective assistance of counsel based on Mr. Rand’s involvement in jury selection. See United States v. Rodriguez,
IV
In sum, Mr. Howell would not be entitled to habeas relief on any of the claims raised in his federal petition,- even if they were аdjudicated on the merits.
Notes
. Mr. Sheffield explained at the hearing that the improved attorney-client communication in the state capital case resulted from differences between the state and federal discovery procedures. Compare Fed.R.Crim.P. 16, with Fla. R.Crim. P. 3.220. In his view, the attorney-client relationship was strained in the federal case due to Mr. Howell’s perception that Mr. Sheffield was continuously served with requested discovery disclosures, but could not obtain certain desired discovery from the government because of the Jencks Act, 18 U.S.C. § 3500(a).
. Mr. Howell and Patrick Howell are brothers.
. The trial court found that Mr. Howell and his brother had differing interests and noted that the two men had previously gotten into a physical altercation in the courtroom. At the time of jury selection in Mr. Howell’s case, Patrick had entered into a plea agreement.