Louise Harris v. Commissioner, Alabama Department of Corrections , 874 F.3d 682 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14484
________________________
D.C. Docket No. 2:11-cv-00552-WKW-SRW
LOUISE HARRIS,
Petitioner - Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF ALABAMA,
WARDEN,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(October 25, 2017)
Before MARTIN, JILL PRYOR and MELLOY, * Circuit Judges.
*
Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
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JILL PRYOR, Circuit Judge:
Louise Harris, an Alabama inmate, appeals the district court’s denial of her
28 U.S.C. § 2254 federal habeas petition. Harris was convicted for arranging the
murder of her husband, Montgomery County Deputy Sheriff Isaiah Harris, and
sentenced to life imprisonment without parole. Following unsuccessful challenges
to her conviction on direct appeal and collateral proceedings in the Alabama state
courts, Harris filed a federal habeas petition in the United States District Court for
the Middle District of Alabama, which the district court denied. Harris appeals the
rejection of her petition on a single ground: that she was denied effective
assistance of counsel at the guilt phase of her trial because a revolving door of trial
attorneys, collectively, left her unable to muster an adequate defense. Because the
Alabama courts deemed this challenge procedurally defaulted, Harris additionally
asserts that she can demonstrate cause and prejudice to excuse the default.
After a thorough review of the briefing and the record, and with the benefit
of oral argument, we affirm the denial of Harris’s petition. Although we do not
rule out that an ineffective assistance of counsel claim could be based on the lack
of continuity of counsel, and we agree that Harris can show cause why she failed to
raise her claim at the appropriate time in state court, we conclude that she cannot
demonstrate that the lack of continuity of counsel prejudiced her case. Thus, she
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cannot overcome the procedural default and, for the same reasons, cannot
demonstrate a meritorious claim of ineffective assistance of counsel.
I. FACTUAL BACKGROUND
Harris was convicted in Alabama of the murder of her husband, Isaiah
Harris. The murder was deemed a capital offense because it was “for pecuniary
gain or pursuant to a contract for hire” and because Isaiah Harris was an on-duty
deputy sheriff. Harris v. State, 632 So. 2d 503, 508 (Ala. Crim. App. 1992). After
Harris was convicted, the jury voted 7 to 5 for a life sentence, but the trial court
overrode the jury’s recommendation and imposed a death sentence. Id. Although
Harris’s death sentence was upheld on direct appeal, it was vacated during her state
postconviction proceedings because trial counsel rendered ineffective assistance in
failing to investigate and present mitigating evidence at the penalty phase. Upon
the parties’ agreement, the trial court resentenced Harris to life without parole.
Below we recount the events that led to Harris’s trial and conviction, as well
as evidence adduced at her state postconviction proceedings.
A. Pretrial Proceedings
Lorenzo McCarter hired two men to kill Isaiah Harris. Sometime thereafter,
Harris—who had had an extramarital affair with McCarter—was implicated in the
murder.
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Harris was indigent, so the trial court appointed counsel for her. On May 19,
1988, the court appointed Frank Riggs and Tim Halstrom as defense counsel. Two
months later, Riggs and Halstrom filed a “Motion for Reasonable and Adequate
Compensation of Counsel, or to Excuse Appointed Counsel,” in which they
admitted that they had “little experience in capital litigation” and requested
compensation above that permitted by Alabama law so that they could get up to
speed in a short amount of time on the relevant facts of Harris’s case and the law
governing capital cases. Ex. A Vol. VI, R-1081-83.2 On August 22, 1988, the trial
court entered an order “assum[ing] that” counsel’s motion was “to be relieved of
. . . appointment as attorneys in this case” and relieving counsel of their
appointment. Ex. A Vol. VI, R-1102. There is no indication in the record that
Harris knew of counsel’s motion or the court’s order.
On August 30, 1988, the trial court appointed Pete Yates to represent Harris.
Although the record does not contain an order appointing co-counsel, it is clear
that David Allred also was appointed to represent Harris around August 30: he is
copied on the order appointing Yates. On September 1, 1988, the trial court
appointed Maury Smith to represent Harris, apparently alongside Yates and Allred.
2
The exhibits cited in this opinion were appended to the State’s answer to Harris’s
federal habeas petition, which can be found at docket entry 24 on the district court’s docket.
They are not included on the district court’s electronic docket.
4
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On September 6, 1988, a week after he was appointed, Allred filed a
“Motion for Relief from Appointment.” Ex. A Vol. VI, R-1108. Yates and Smith
also apparently moved to withdraw, although the record does not contain their
motions. Within days, the trial court granted the motions, permitting all three
lawyers to withdraw. Again, there is no indication that Harris knew of counsel’s
motions or the trial court’s orders.
On September 14, 1988, the trial court appointed Barry Leavell and John
Alley to represent Harris, her sixth and seventh lawyers in a span of about four
months. On September 29, just over two weeks later, the court relieved Alley and
replaced him with Knox Argo, who would serve as counsel at trial. At this point,
the case was set for trial on March 20, 1989, giving Leavell and Argo six months
to prepare a capital murder case for a guilt and a penalty phase.
Less than a week before trial was set to begin, Leavell and Argo notified the
trial court that there was a problem: they had just discovered that Alabama law
required counsel in a capital case to have had five years of active criminal practice,
and neither had the requisite experience.3 Leavell and Argo nonetheless
represented to the court that “factually the case is ready to go to trial.” Ex. A Vol.
1, R-25. The court continued the trial and, on March 29, 1989, replaced Leavell
3
See Ala. Stat. § 13A-5-54 (“Each person indicted for an offense punishable [by death]
who is not able to afford legal counsel must be provided with court appointed counsel having no
less than five years’ prior experience in the active practice of criminal law.”).
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with Eric Bowen as lead counsel. Bowen was a relatively experienced criminal
lawyer, but he had never defended a capital case.
Just over three months later, on July 10, 1989, Harris’s trial began with
Bowen and Argo as her counsel.
The facts elicited at trial are thoroughly detailed in the Alabama Court of
Criminal Appeals’s opinion in Harris’s direct appeal. See Harris, 632 So. at 508-
09. We include a summary of facts relevant to this appeal.
The State presented the following evidence at Harris’s trial. At the time of
Isaiah Harris’s murder, Harris was having an affair with McCarter. McCarter,
who—to avoid a potential death sentence—testified against Harris at her trial,
hired two men, Michael Sockwell and Alex Hood, to kill Isaiah Harris while he
was on his way to work his night shift at the local jail. Sockwell and Hood parked
a car outside the Harris’s subdivision and waited for Isaiah Harris to leave for
work. Isaiah Harris left home around 11:00 p.m.; when he “stopped at the stop
sign at the entrance of the subdivision, Sockwell shot him once in the face at close
range with a shotgun,” killing him. Id. at 508.
McCarter testified that Harris asked him to hire someone to kill her husband.
In support of McCarter’s testimony, the State offered evidence “of the existence of
various insurance policies on the victim’s life, with [Harris] specified as the
beneficiary.” Id. The State also offered the testimony of several law enforcement
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officers, who testified that, upon hearing the news of her husband’s death, Harris
behaved abnormally. Harris testified in her own defense, adamantly denying
arranging her husband’s murder. The jury returned a guilty verdict.
As discussed above, Harris originally was sentenced to death. That sentence
was overturned during her state postconviction proceedings because Bowen and
Argo failed to investigate and present an adequate case in mitigation. By
agreement of the parties, Harris was resentenced to life without parole.
C. Direct Appeal and State Postconviction
Harris received new counsel on appeal, where her conviction was affirmed
by the Alabama Court of Criminal Appeals. See Harris, 632 So. 2d at 543.
Then, again with new lawyers, Harris filed a timely petition for
postconviction relief under Rule 32 of the Alabama Rules of Criminal Procedure.
During those state postconviction proceedings, Harris alleged for the first time that
“trial counsel was ineffective at the guilt phase of her trial because . . . counsel
failed to maintain continuity in representation.” Harris v. State, 947 So. 2d 1079,
1095 (Ala. Crim. App. 2004). As the state courts did, we refer to this ineffective
assistance claim as Harris’s “continuity of counsel claim.” The Alabama Court of
Criminal Appeals held that the trial court “correctly summarily dismissed this
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claim pursuant to Rule 32.2(a)(3), as a claim challenging the continuity of counsel
that could have been, but was not, raised at trial.” Id. 4
Harris petitioned the Alabama Supreme Court for certiorari, arguing that her
claim could not be procedurally barred under Rule 32.2(a)(3) because raising the
claim at trial “‘would have required one of Mrs. Harris’s nine assigned attorneys to
appreciate and articulate—amid the revolving door of attorney dismissals,
withdrawals and appointments that forms the basis of this claim—their [own] . . .
ineffective assistance.’” Ex parte Harris, 947 So. 2d 1139, 1149 (Ala. 2005)
(quoting Harris’s brief in support of certiorari). The Alabama Supreme Court
granted Harris’s petition for certiorari but ultimately agreed with the Court of
Criminal Appeals that the claim was defaulted, reasoning that Bowen and Argo
had time to raise the claim before the trial began. Id. 5
4
The State maintains, as it did in the state courts, that Harris failed to raise a continuity of
counsel claim in her Rule 32 petition. The Alabama Court of Criminal Appeals and the Alabama
Supreme Court, however, treated the claim as having been raised in the Rule 32 proceedings in
the trial court. See Harris, 947 So. 2d at 1095; Ex parte Harris, 947 So. 2d 1139, 1149 (Ala.
2005) (“[W]e agree with the Court of Criminal Appeals that that claim is procedurally barred
because it could have been, but was not, raised at trial.”). Given these facts, we will not revisit
the adequacy of Harris’s Rule 32 pleadings.
5
Neither the Alabama Court of Criminal Appeals nor the Alabama Supreme Court
deemed Harris’s continuity of counsel claim procedurally barred because she failed to raise it on
direct appeal, in addition or as opposed to at trial. Nor did the State ever invoke such a bar, in
state or federal court. “If . . . the petitioner did raise the claim in the state courts but not at the
time or in the manner required by the state procedural rules, the resulting procedural bar defense
may be waived by the State’s failure to assert it.” Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327,
1340 (11th Cir. 2009). Harris raised her continuity of counsel claim through one complete round
of state court review: state postconviction. Under Smith’s reasoning, to the extent Harris’s claim
could be barred for the additional reason that she failed to raise it on direct appeal, the State has
waived that bar by failing to assert it.
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D. Federal Habeas
Harris timely filed a § 2254 petition for a writ of habeas corpus. The State
invoked the procedural bar upon which the Alabama courts relied, and Harris
argued that she could overcome the default by demonstrating cause why trial
counsel failed to raise a continuity of counsel claim and prejudice from counsel’s
failure to raise it.6 The revolving door of attorney appointments, withdrawals, and
dismissals, Harris argued, was an objective factor external to the defense that
impeded her effort to raise the claim properly in state court. And, Harris argued,
there was a reasonable probability that her continuity of counsel claim would have
succeeded had she been able to raise it at an appropriate time.
A magistrate judge recommended that Harris’s petition be denied. With
respect to the continuity of counsel claim, the magistrate judge assumed Harris
could show cause but determined that she could not show prejudice “because she
fail[ed] to demonstrate specific prejudice that resulted from the lack of continuity”
and “fail[ed] to show that, absent the alleged discontinuity in her representation,
there is a reasonable probability that the result of the proceeding would have been
6
Harris did not argue in the district court, nor does she do so here, that there was no
procedural default. Rather, she contends that she can demonstrate cause and prejudice to
overcome the default.
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different.” Doc. 34 at 60. 7 Over Harris’s objection, the district court adopted the
magistrate judge’s recommendation and denied Harris’s petition.
This Court granted Harris a certificate of appealability (“COA”) on her
continuity of counsel claim. 8
II. STANDARD OF REVIEW AND BACKGROUND LEGAL PRINCIPLES
“[W]hether a particular claim is subject to the doctrine of procedural
default . . . is a mixed question of fact and law, which we review de novo. Judd v.
Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). Federal review of a procedurally
defaulted claim is available if a petitioner can show both cause for the default and
actual prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 485 (1986).
“To establish ‘cause’ for procedural default, a petitioner must demonstrate that
some objective factor external to the defense impeded the effort to raise the claim
properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999).
“To establish ‘prejudice,’ a petitioner must show that there is at least a reasonable
probability that the result of the proceeding would have been different.”
Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
7
“Doc.” refers to the numbered entry on the district court’s docket in this case.
8
To the extent necessary, we sua sponte expand Harris’s COA to include whether the
district court was correct in its procedural default ruling. See Dell v. United States, 710 F.3d
1267, 1272-73 (11th Cir. 2013) (sua sponte expanding a COA after oral argument). We note,
however, that the prejudice requirement for overcoming a procedural default, on which we
decide this case, is coterminous with the ineffective assistance of counsel prejudice inquiry, for
which Harris originally was granted a COA. See infra Part II.
10
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Under Strickland v. Washington, a defendant has a Sixth Amendment right
to effective assistance of trial counsel. 466 U.S. 668, 686 (1984). Counsel renders
ineffective assistance, warranting vacatur of a conviction or sentence, when their
performance falls “below an objective standard of reasonableness,” taking into
account prevailing professional norms, and when “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 688, 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. Here, the
prejudice showing for overcoming the procedural default is coterminous with the
prejudice showing Harris must make to prove her ineffective assistance of counsel
claim. Mincey v. Head, 206 F.3d 1106, 1147 & n.86 (11th Cir. 2000) (citing
Strickler v. Greene, 527 U.S. 263, 289 (1999)).
III. DISCUSSION
Harris argues that the district court erred in concluding that she failed to
show actual prejudice to excuse the procedural default of her continuity of counsel
claim. She maintains that the discontinuity of counsel denied her the opportunity
to form a working relationship with counsel and, as a result, they were unable to
effectively assist her defense.
With respect to cause, which the district court did not reach but Harris must
demonstrate to prevail, Harris makes two related arguments. She first contends
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that the ineffective assistance of her counsel itself provides cause for failing to
raise the issue at trial. Second, she argues that her attorneys were prevented by a
conflict of interest from raising their own ineffectiveness based on the turnover in
counsel, and that this conflict of interest supplies cause.
As to prejudice, Harris asserts that the revolving door of attorneys prevented
her from developing a relationship of trust and confidence with defense counsel.
She explains that, as a result, critical aspects of her background and intellectual
limitations were omitted from her defense.
For the reasons that follow, we hold that although Harris can demonstrate
cause for her trial counsel’s failure to raise her continuity of counsel claim, she has
failed to make the requisite showing of prejudice. We thus affirm the denial of
relief.
A. Cause
Harris advances two reasons why there is cause for her trial counsel’s failure
to raise the continuity of counsel claim. She first argues that the lack of continuity
of counsel itself supplies cause to excuse the default. Although this may explain
why some of her lawyers failed to raise the claim—that is, they held appointments
only for a matter of days or weeks—ultimately her assertion begs the question why
Bowen and Argo, who tried the case, failed to raise the claim during the months
they represented Harris (Argo for about 12 and Bowen for about 6). See Ex parte
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Harris, 947 So. 2d at 1149 (holding that Harris defaulted her claim because Bowen
and Argo “had at least nine months in which to consider whether the fact that
Harris had been represented by so many different pretrial attorneys amounted to
ineffective assistance”).
Harris’s second, related, argument for why she can show cause accounts for
Bowen and Argo’s failure to raise her continuity of counsel claim. Because the
claim hinges on the prejudice to her at trial caused by the revolving door of
lawyers appointed to represent her, her continuity of counsel claim necessarily is
premised upon Bowen and Argo’s having been part of the constitutionally deficient
representation.9 In other words, to have raised the claim at trial, Bowen and Argo
would have had to establish that the discontinuity thus far had prejudiced Harris’s
defense, and they could not (or did not) right the ship. Bowen and Argo, as part of
the chain of appointed counsel, therefore would have been forced to implicate
themselves to raise the continuity of counsel claim at trial.
This implication would have given rise to a conflict of interest whereby
counsel would be tasked with asserting their own constitutional deficiency. 10 See
9
If they were not part of the deficient representation, then they broke the chain of
causation, and any errors at trial could only be attributed to them via a garden-variety ineffective
assistance of counsel claim. But this is not what Harris argues. Nor could she, because that
claim is beyond the scope of her COA, and the circumstances here do not warrant our expanding
her COA to include a claim that Bowen and Argo were ineffective in and of themselves.
10
Indeed, the State acknowledges that counsel should not be required to allege their own
ineffectiveness. See Appellee’s Br. at 18. The State instead argues that Bowen and Argo’s
conflict of interest cannot supply cause because Harris has failed to prove a causal link between
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Roberts v. State, 141 So. 3d 1139, 1141-42 (Ala. Crim. App. 2013) (noting that
Alabama “caselaw questions the propriety of an attorney asserting his or her own
ineffectiveness” and explaining that such an “obvious conflict” may not be
waivable); Lawrence Kornreich and Alexander I. Platt, The Temptation of
Martinez v. Ryan: Legal Ethics for the Habeas Bar, 8 Am. Univ. Crim. L. Br., no.
1, at 2 & n.35 (2012) (collecting cases holding that counsel alleging their own
ineffectiveness would produce a conflict of interest). “A lawyer has a personal
interest in not being found to have performed ineffectively and in preserving her
reputation as an effective practitioner. That interest, by definition, conflicts with
the interests of a client asserting a claim based on” his lawyer’s ineffectiveness.
Id. at 2; see Ala. R. Prof. Cond. 1.7(b) (“A lawyer shall not represent a client if the
representation of that client may be materially limited by . . . the lawyer’s own
interest.”).
Had Bowen and Argo advanced the continuity of counsel claim, the
resulting conflict of interest would have violated Harris’s Sixth Amendment right
to assistance of counsel. See Wood v. Georgia, 450 U.S. 261, 271 (1981) (“Where
a constitutional right to counsel exists, our Sixth Amendment cases hold that there
the discontinuity and their poor performance at trial. As discussed below, we agree that Harris
has failed to demonstrate this causal link. But her failure of proof does not negate the fact that
Bowen and Argo were prevented by a looming conflict of interest from raising the continuity of
counsel claim at trial.
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is a correlative right to representation that is free from conflicts of interest.”). And
a Sixth Amendment violation “must be seen as an external factor, i.e., imputed to
the state” for purposes of establishing cause. Coleman v. Thompson, 501 U.S. 722,
754 (1991) (internal quotation marks omitted), holding modified by Martinez v.
Ryan, 132 S. Ct. 1309 (2012).11 This Court has held that, where counsel failed to
preserve an error at trial “out of fear of . . . loss of practice,” even when counsel’s
conduct “was not constitutionally ineffective under Strickland, . . . such failure is
an ‘objective factor external to the defense’ which is ‘cause’ for the procedural
default.” Hollis v. Davis, 941 F.2d 1471, 1479 (11th Cir. 1991) (quoting Carrier,
477 U.S. at 488). 12
The same holds true here. Under the circumstances of this case, each of
Harris’s trial lawyers, Bowen and Argo included, was prevented by an objective
factor external to the defense from raising Harris’s continuity of counsel claim at
trial. Harris therefore has demonstrated cause to overcome the procedural default.
11
In Coleman, the Supreme Court held that ineffective assistance of state postconviction
counsel could not supply cause to overcome a procedural default, reasoning that because there is
no right to counsel at that stage, counsel’s deficient performance would not amount to a violation
of a petitioner’s Sixth Amendment right to counsel and, therefore, could not be seen as an
objective factor external to the defense. 501 U.S. at 752-57. That holding was modified by
Martinez, in which the Supreme Court held that ineffective assistance of state postconviction
counsel can in some circumstances supply cause to excuse a procedural default. 132 S. Ct. at
1315.
12
See also Manning v. Foster, 224 F.3d 1129, 1134 (9th Cir. 2000) (holding that “a
conflict of interest, independent of a claim of ineffective assistance of counsel, . . . constitute[s]
cause where the conflict caused the attorney to interfere with the petitioner’s right to pursue his
. . . claim.”); cf. United States v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991) (“[T]rial counsel . . .
can hardly be expected to challenge on appeal his own effectiveness at trial.”).
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B. Prejudice
Harris must still demonstrate prejudice, which, for the reasons below, we
conclude she cannot do.
As she did in the district court, Harris argues that but for counsel’s
deficiencies due to the lack of continuity of counsel, there is a reasonable
probability that the result of her trial would have been different; thus, she can show
prejudice to overcome the procedural default. Specifically, she contends that, had
she not been faced with a revolving door of attorneys, she would have developed a
relationship of trust and confidence with counsel, the result of which would have
been a more fulsome defense based on her background (including domestic abuse
by her husband and McCarter) and intellectual limitations. This additional context,
Harris argues, would have persuaded the jury that she had neither the motive nor
the intellectual capacity to orchestrate a murder for hire.
The State’s response to Harris’s prejudice arguments is twofold. First, the
State argues that a continuity of counsel claim is not cognizable as a freestanding
Strickland claim. Second, the State contends that, even if the claim is cognizable,
Harris cannot prove prejudice because she has failed to show “how, if at all, the
high changeover in attorneys affected [her] defense at trial.” Appellee’s Br. at 26.
Although it is conceivable that a petitioner could state an ineffective assistance of
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counsel claim based on discontinuity of counsel, we agree with the State that
Harris has failed to demonstrate a causal link between the discontinuity of counsel
and resulting errors at trial. Thus, the district court was right to deny her claim.
It is by now black letter law that to prevail on an ineffective assistance of
counsel claim, a petitioner must establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694 (emphasis added). That is, a petitioner
must demonstrate that her counsel’s deficient performance caused the prejudice
she suffered. Harris has failed to do so. Simplified, Harris maintains that: (1)
there was a frequent turnover in attorneys (at least some of whom were
underqualified) prior to Bowen and Argo being appointed, and (2) Bowen and
Argo never developed a sufficient working relationship with her such that they
could muster an effective defense. What she has failed to establish, though, is a
causal link between the turnover and what should have been, but was not,
presented at trial.
Put differently, Harris has not explained how specific acts or omissions of
her first seven lawyers caused the failed strategy presented at trial by her eighth
and ninth lawyers. Her general allegations that most of the lawyers appointed to
represent her lacked sufficient experience to try a capital case, Bowen had little
time to prepare for trial, and the turnover in counsel hamstrung her ability to form
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a meaningful relationship with counsel do not supply the causal link her claim
requires. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir.
2011) (“[A]llegations [in a habeas petition] must be factual and specific, not
conclusory.”). Without this link, she cannot demonstrate that any constitutionally
deficient representation caused her to suffer prejudice. And without satisfying the
prejudice prong of Strickland, Harris cannot establish prejudice to excuse the
procedural default. The district court correctly denied her petition.
IV. CONCLUSION
It is not a foregone conclusion that a petitioner who, like Harris, experienced
a high rate of turnover in counsel leading up to trial could never prove an
ineffective assistance of counsel claim based on that discontinuity of counsel. If,
for example, a petitioner could demonstrate that the discontinuity caused a
complete breakdown in trial strategy, this might amount to a valid Strickland-based
challenge to the lack of continuity of counsel. Unfortunately, Harris has not
established the causal link Strickland requires. So although she has shown cause
why her trial counsel failed to raise the continuity of counsel claim at trial, she
cannot show prejudice. Therefore, as the district court concluded, we cannot
excuse the procedural default the state courts applied, and for this reason, we
affirm the district court’s denial of Harris’s habeas petition.
AFFIRMED.
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