Harbison v. Bell , 129 S. Ct. 1481 ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HARBISON v. BELL, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 07–8521. Argued January 12, 2009—Decided April 1, 2009
After the Tennessee state courts rejected petitioner Harbison’s convic
tion and death sentence challenges, the Federal District Court ap
pointed a federal public defender to represent him in filing a habeas
petition under 28 U. S. C. §2254. That petition was denied. Harbi
son then sought appointment of counsel for state clemency proceed
ings. Because Tennessee law no longer authorizes the appointment
of state public defenders as clemency counsel, his federal counsel
moved to expand the scope of her representation to include the state
proceedings. In denying the motion, the District Court relied on Cir
cuit precedent construing 18 U. S. C. §3599, which provides for the
appointment of federal counsel. The Sixth Circuit affirmed.
Held:
1. A certificate of appealability pursuant to 28 U. S. C.
§2253(c)(1)(A) is not required to appeal an order denying a request
for federally appointed counsel under §3599 because §2253(c)(1)(A)
governs only final orders that dispose of a habeas corpus proceeding’s
merits. Pp. 2–3.
2. Section 3599 authorizes federally appointed counsel to represent
their clients in state clemency proceedings and entitles them to com
pensation for that representation. Pp. 3–14.
(a) Section 3599(a)(2), which refers to both §2254 and §2255 pro
ceedings, triggers the appointment of counsel for both state and fed
eral postconviction litigants, and §3599(e) governs the scope of ap
pointed counsel’s duties. Thus, federally funded counsel appointed to
represent a state prisoner in §2254 proceedings “shall also represent
the defendant in such . . . proceedings for executive or other clemency
as may be available to the defendant.” §3599(e). Because state clem
ency proceedings are “available” to state petitioners who obtain sub
2 HARBISON v. BELL
Syllabus
section (a)(2) representation, the statute’s plain language indicates
that appointed counsel’s authorized representation includes such
proceedings. Moreover, subsection (e)’s reference to “proceedings for
. . . other clemency” refers to state proceedings, as federal clemency is
exclusively executive, while States administer clemency in various
ways. The Government is correct that appointed counsel is not ex
pected to provide each service enumerated in subsection (e) for every
client. Rather, counsel’s representation includes only those judicial
proceedings transpiring “subsequent” to her appointment, which un
der subsection (a)(2) begins with the §2254 or §2255 “post-conviction
process.” Pp. 3–8.
(b) The Government’s attempts to overcome §3599’s plain lan
guage are not persuasive. First, our reading of the statute does not
produce absurd results. Contrary to the Government’s contention, a
lawyer is not required to represent her client during a state retrial
following postconviction relief because the retrial marks the com
mencement of new judicial proceedings, not a subsequent stage of ex
isting proceedings; state postconviction proceedings are also not “sub
sequent” to federal habeas proceedings. Second, the legislative
history does not support the Government's argument that Congress
intended §3599 to apply only to federal defendants. Congress’ deci
sion to furnish counsel for state clemency proceedings reflects both
clemency’s role as the “ ‘fail safe’ of our criminal justice system,”
Herrera v. Collins, 506 U. S. 390, 415, and the fact that federal ha
beas counsel are well positioned to represent their clients in clemency
proceedings. Pp. 8–14.
503 F. 3d 566, reversed.
STEVENS, J., delivered the opinion of the Court, in which KENNEDY,
SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., and THO-
MAS, J., filed opinions concurring in the judgment. SCALIA, J., filed an
opinion concurring in part and dissenting in part, in which ALITO, J.,
joined.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
_________________
No. 07–8521
_________________
EDWARD JEROME HARBISON, PETITIONER v.
RICKY BELL, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 1, 2009]
JUSTICE STEVENS delivered the opinion of the Court.
Petitioner Edward Jerome Harbison was sentenced to
death by a Tennessee court in 1983. In 1997, after the
state courts rejected challenges to his conviction and
sentence, the Federal District Court appointed the Federal
Defender Services of Eastern Tennessee to represent him
in filing a petition for a writ of habeas corpus pursuant to
28 U. S. C. §2254.1 During the course of that representa
tion, counsel developed substantial evidence relating both
to Harbison’s culpability and to the appropriateness of his
sentence. Although the courts did not order relief, the
evidence proved persuasive to one Circuit Judge. See 408
F. 3d 823, 837–846 (CA6 2005) (Clay, J., dissenting).
Shortly after his habeas corpus petition was denied,
Harbison requested counsel for state clemency proceed
ings. In 2006, the Tennessee Supreme Court held that
state law does not authorize the appointment of state
public defenders as clemency counsel. State v. Johnson,
——————
1 Federal Defender Services of Eastern Tennessee is a nonprofit or
ganization established pursuant to the Criminal Justice Act of 1964, 18
U. S. C. §3006A(g)(2)(B).
2 HARBISON v. BELL
Opinion of the Court
No. M1987–00072–SC–DPE–DD (per curiam), 2006 Tenn.
Lexis 1236, at *3 (2006). Thereafter, Harbison’s federally
appointed counsel moved to expand the authorized scope
of her representation to include state clemency proceed
ings. Relying on Circuit precedent construing 18 U. S. C.
§3599, which provides for the appointment of federal
counsel, the District Court denied the motion, and the
Court of Appeals affirmed. 503 F. 3d 566 (CA6 2007).
We granted certiorari, 554 U. S. ___ (2008), to decide
two questions: (1) whether a certificate of appealability
(COA) is required to appeal an order denying a request for
federally appointed counsel pursuant to §3599, and (2)
whether §3599(e)’s reference to “proceedings for executive
or other clemency as may be available to the defendant”
encompasses state clemency proceedings. We conclude
that a COA is not necessary and that §3599 authorizes
federally appointed counsel to represent clients in state
clemency proceedings.
I
We first consider whether Harbison was required to
obtain a COA to appeal the District Court’s order. The
State of Tennessee and the United States as amicus curiae
agree with Harbison that he was not.
The District Court’s denial of Harbison’s motion to
authorize his federal counsel to represent him in state
clemency proceedings was clearly an appealable order
under 28 U. S. C. §1291. See, e.g., McFarland v. Scott, 512
U. S. 849 (1994) (reviewing the Court of Appeals’ judg
ment denying a petition for the appointment of counsel
pursuant to the statute now codified at 18 U. S. C. §3599).
The question is whether Harbison’s failure to obtain a
COA pursuant to 28 U. S. C. §2253(c)(1)(A) deprived the
Court of Appeals of jurisdiction over the appeal.
Section 2253(c)(1)(A) provides that unless a circuit
justice or judge issues a COA, an appeal may not be taken
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
from “the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court.” This provision governs final
orders that dispose of the merits of a habeas corpus pro
ceeding—a proceeding challenging the lawfulness of the
petitioner’s detention. See generally Slack v. McDaniel,
529 U. S. 473, 484–485 (2000); Wilkinson v. Dotson, 544
U. S. 74, 78–83 (2005). An order that merely denies a
motion to enlarge the authority of appointed counsel (or
that denies a motion for appointment of counsel) is not
such an order and is therefore not subject to the COA
requirement.
II
The central question presented by this case is whether
18 U. S. C. §3599 authorizes counsel appointed to repre
sent a state petitioner in 28 U. S. C. §2254 proceedings to
represent him in subsequent state clemency proceedings.
Although Tennessee takes no position on this question, the
Government defends the judgment of the Court of Appeals
that the statute does not authorize such representation.
We begin with the language of the statute. Section
3599, titled “Counsel for financially unable defendants,”
provides for the appointment of counsel for two classes of
indigents, described, respectively, in subsections (a)(1) and
(a)(2). The former states:
“[I]n every criminal action in which a defendant is
charged with a crime which may be punishable by
death, a defendant who is or becomes financially un
able to obtain adequate representation or investiga
tive, expert, or other reasonably necessary services at
any time either—
“(A) before judgment; or
“(B) after the entry of a judgment imposing a
sentence of death but before the execution of that
judgment;
4 HARBISON v. BELL
Opinion of the Court
“shall be entitled to the appointment of one or more
attorneys and the furnishing of such other services in
accordance with subsections (b) through (f).”
Subsection (a)(2) states:
“In any post conviction proceeding under section 2254
or 2255 of title 28, United States Code, seeking to va
cate or set aside a death sentence, any defendant who
is or becomes financially unable to obtain adequate
representation or investigative, expert, or other rea
sonably necessary services shall be entitled to the ap
pointment of one or more attorneys and the furnishing
of such other services in accordance with subsections
(b) through (f).”
The parties agree that subsections (a)(1) and (a)(2) make
two different groups eligible for federally appointed coun
sel: (a)(1) describes federal capital defendants, while (a)(2)
describes state and federal postconviction litigants,
as indicated by its reference to both §2254 and §2255
proceedings.2
After subsections (b) through (d) discuss counsel’s nec
essary qualifications, subsection (e) sets forth counsel’s
responsibilities. It provides:
“Unless replaced by similarly qualified counsel upon
the attorney’s own motion or upon motion of the de
fendant, each attorney so appointed shall represent
the defendant throughout every subsequent stage of
available judicial proceedings, including pretrial pro
ceedings, trial, sentencing, motions for new trial, ap
peals, applications for writ of certiorari to the Su
preme Court of the United States, and all available
post-conviction process, together with applications for
stays of execution and other appropriations motions
——————
2 We note that §3599 uses the term “defendant” to describe postcon
viction litigants.
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
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.” (Emphasis added.)
Focusing on the italicized clause of subsection (e), Harbi
son contends that the plain language of the statute dic
tates the outcome of this case. We are persuaded by his
argument.
Under a straightforward reading of the statute, subsec
tion (a)(2) triggers the appointment of counsel for habeas
petitioners, and subsection (e) governs the scope of ap
pointed counsel’s duties. See §3599(a)(2) (stating that
habeas petitioners challenging a death sentence shall be
entitled to “the furnishing of . . . services in accordance
with subsections (b) through (f)”). Thus, once federally
funded counsel is appointed to represent a state prisoner
in §2254 proceedings, she “shall also represent the defen
dant in such . . . proceedings for executive or other clem
ency as may be available to the defendant.” §3599(e).
Because state clemency proceedings are “available” to
state petitioners who obtain representation pursuant to
subsection (a)(2), the statutory language indicates that
appointed counsel’s authorized representation includes
such proceedings.
The Government contends that, fairly read, the statute
as a whole is intended to furnish representation only in
federal proceedings and that all proceedings listed in
subsection (e), including clemency proceedings, should be
understood to be federal. The absence of the word “fed
eral” in this subsection is not dispositive, it maintains,
because subsection (a)(1) likewise does not use the word
“federal” yet the parties agree that provision concerns only
federal defendants. Just as “federal” is implied by context
in subsection (a)(1), so too, the Government says, is it
implied in subsection (e). According to the Government,
6 HARBISON v. BELL
Opinion of the Court
the repeated use of the word “available” supports this
reading: Congress contemplated that not all catalogued
proceedings would be available to any given client,
and clemency proceedings are simply not available to
state petitioners because they are ineligible for federal
clemency.
The Government’s argument is not convincing. Subsec
tion (a)(1) is properly understood as describing federal
defendants because the statute is primarily concerned
with federal criminal actions3 and (a)(1) includes no lan
guage suggesting that it applies more broadly. By con
trast, subsection (a)(2) refers to state litigants, and it in
turn provides that subsection (e) applies to such litigants.
There is therefore no basis for assuming that Congress
intended “proceedings for executive or other clemency as
may be available to the defendant” in subsection (e) to
indicate only federal clemency.
To the contrary, the reference to “proceedings for execu
tive or other clemency,” §3599(e) (emphasis added), reveals
that Congress intended to include state clemency proceed
ings within the statute’s reach.4 Federal clemency is
exclusively executive: Only the President has the power to
grant clemency for offenses under federal law. U. S.
Const., Art. II, §2, cl. 1.5 By contrast, the States adminis
——————
3 As we discuss below, §3599 was originally enacted as part of a stat
ute creating a new federal capital offense, Anti-Drug Abuse Act of 1988,
§7001(b), 102 Stat. 4388, and it is now codified in Title 18, which
principally addresses federal criminal proceedings.
4 JUSTICE SCALIA argues that subsection (e), including the reference to
“other clemency,” was drafted to apply only to federal defendants, but
this is not correct, as we discuss infra, at 10–12.
5 The Government suggests that Congress might have referred to
“other clemency” to encompass the Executive’s use of other persons to
assist him in reviewing clemency applications. But as the Government
concedes, see Tr. of Oral Arg. 43—and as Members of Congress would
have known—regardless of what assistance the President seeks, the
federal proceeding is one for executive clemency under the Constitu
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
ter clemency in a variety of ways. See, e.g., Ga. Const.,
Art. IV, §2 (independent board has clemency authority);
Nev. Const., Art. 5, §14 (governor, supreme court justices,
and attorney general share clemency power); Fla. Const.,
Art. IV, §8 (legislature has clemency authority for trea
sonous offenses); McLaughlin v. Bronson, 206 Conn. 267,
271, 537 A. 2d 1004, 1006–1007 (1988) (“In Connecticut,
the pardoning power is vested in the legislature, which
has delegated its exercise to the board of pardons” (cita
tion omitted)). Congress’ reference to “other clemency”
thus does not refer to federal clemency but instead encom
passes the various forms of state clemency.6
The Government’s reliance on the word “available” is
also misplaced. While it maintains that Congress’ re
peated use of the word shows that various §3599(e) proce
dures do not apply to particular indigents, the term in
stead indicates the breadth of the representation
contemplated. The directive that counsel “shall represent
the defendant throughout every subsequent stage of avail
able judicial proceedings, including . . . all available post
conviction process,” for example, hardly suggests a limita
tion on the scope of representation.
The Government is correct that appointed counsel is not
——————
tion.
6 We also note that the Government’s proposal to read the word “fed
eral” into §3599(e) would lead to absurd results. It is clear, for exam
ple, that a state inmate faced with an imminent execution might be
required to apply for a stay from a state court before seeking such relief
in a federal court. On our reading of the statute, federally appointed
counsel would be permitted to represent her client pursuant to subsec
tion (e)’s reference to “applications for stays of execution and other
appropriate motions and procedures.” But on the Government’s read
ing, the inmate would have to secure new counsel to file the stay
request because his federal counsel would not be authorized to repre
sent him. Such a rigid limit on the authority of appointed federal
counsel would be inconsistent with the basic purpose of the statute. Cf.
McFarland v. Scott, 512 U. S. 849, 854–857 (1994).
8 HARBISON v. BELL
Opinion of the Court
expected to provide each service enumerated in subsection
(e) for every client. But that limitation does not follow
from the word “available”; it follows from the word “subse
quent” and the organization of subsection (e) to mirror the
ordinary course of proceedings for capital defendants.
Counsel’s responsibilities commence at a different part of
subsection (e) depending on whether she is appointed
pursuant to subsection (a)(1)(A), (a)(1)(B), or (a)(2). When
she is appointed pursuant to (a)(1)(A), she is charged with
representing her client in all listed proceedings. When she
is appointed pursuant to (a)(1)(B) (i.e., after the entry of a
federal death sentence), her representation begins with
“appeals.” And when she is appointed pursuant to (a)(2),
her representation begins with the §2254 or §2255 “post
conviction process.” Thus, counsel’s representation in
cludes only those judicial proceedings transpiring “subse
quent” to her appointment. It is the sequential organiza
tion of the statute and the term “subsequent” that
circumscribe counsel’s representation, not a strict division
between federal and state proceedings.
III
In an attempt to overcome the plain language of §3599,
the Government advances two additional arguments that
merit discussion. First, it contends that a literal reading
of subsection (e) would lead to unacceptable results: It
would require a federal lawyer who obtained relief for her
client in §2254 proceedings to continue to represent him
during his state retrial; similarly, it would require federal
counsel to represent her client in any state habeas pro
ceeding following her appointment. Second, the Govern
ment claims that the statute’s legislative history shows
that Congress did not intend to include state clemency
proceedings within §3599(e)’s coverage. Neither argument
is persuasive.
The Government suggests that reading §3599(e) to
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
authorize federally funded counsel for state clemency
proceedings would require a lawyer who succeeded in
setting aside a state death sentence during postconviction
proceedings to represent her client during an ensuing
state retrial. We do not read subsection (e) to apply to
state-court proceedings that follow the issuance of a fed
eral writ of habeas corpus. When a retrial occurs after
postconviction relief, it is not properly understood as a
“subsequent stage” of judicial proceedings but rather as
the commencement of new judicial proceedings. Moreover,
subsection (a)(2) provides for counsel only when a state
petitioner is unable to obtain adequate representation.
States are constitutionally required to provide trial coun
sel for indigent defendants. Thus, when a state prisoner
is granted a new trial following §2254 proceedings, his
state-furnished representation renders him ineligible for
§3599 counsel until the commencement of new §2254
proceedings.
The Government likewise argues that our reading of
§3599(e) would require federally funded counsel to repre
sent her client in any state habeas proceeding occurring
after her appointment because such proceedings are also
“available post-conviction process.” But as we have previ
ously noted, subsection (e) authorizes counsel to represent
her client in “subsequent” stages of available judicial
proceedings. State habeas is not a stage “subsequent” to
federal habeas. Just the opposite: Petitioners must ex
haust their claims in state court before seeking federal
habeas relief. See §2254(b)(1). That state postconviction
litigation sometimes follows the initiation of federal ha
beas because a petitioner has failed to exhaust does not
change the order of proceedings contemplated by the
statute.7
——————
7 Pursuant to §3599(e)’s provision that counsel may represent her client
in “other appropriate motions and procedures,” a district court may
10 HARBISON v. BELL
Opinion of the Court
The Government also argues that §3599(e) should not be
interpreted as including state-clemency proceedings be
cause it was drafted to apply only to federal defendants.
Section 3599 was originally enacted as part of the Anti-
Drug Abuse Act of 1988, §7001(b), 102 Stat. 4388 (codified
at 21 U. S. C. §§848(q)(4)–(10)), which created a federal
capital offense of drug-related homicide. In 2006, the
death penalty procedures specified in that Act were re
pealed and recodified without change at 18 U. S. C. §3599.
Based on the 1988 legislative history, the Government
argues that subsection (e) was not written to apply to state
petitioners at all. In its telling, the subsection was drafted
when the bill covered only federal defendants; state liti
gants were added, by means of what is now subsection
(a)(2), just a few hours before the bill passed in rushed
end-of-session proceedings; and Congress simply did not
attend to the fact that this amendment applied what is
now subsection (e) to state litigants.
While the legislative history is regrettably thin, the
evidence that is available does not support the Govern
ment’s argument. State petitioners were a part of the
Anti-Drug Abuse Act from the first day the House of Rep
resentatives took up the bill. In the amendment authoriz
ing the death penalty for drug-related homicides, Repre
sentative George Gekas included a provision that closely
resembles the current §3599(a)(2): “In any post-conviction
proceeding under section 2254 or 2255 of title 28, United
States Code, seeking to vacate or set aside a death sen
tence, the court shall appoint counsel to represent any
defendant who is or becomes financially unable to obtain
adequate representation.” 134 Cong. Rec. 22984 (1988)
——————
determine on a case-by-case basis that it is appropriate for federal
counsel to exhaust a claim in the course of her federal habeas represen
tation. This is not the same as classifying state habeas proceedings as
“available post-conviction process” within the meaning of the statute.
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
(emphasis added).
Following passage of the Gekas amendment, Represen
tative John Conyers proposed replacing its provisions on
appellate and collateral process (including the above
quoted provision) with language comprising the provisions
now codified at §§3599(a)(1), (b), (c), and (e). Because his
amendment introduced the §3599(e) language and did not
refer specifically to §2254 proceedings, the Government
and JUSTICE SCALIA argue that Representative Conyers
drafted subsection (e) to apply only to federal defendants.
But his floor statements evince his particular concern for
state prisoners. He explained that his amendment filed a
gap because “[w]hile State courts appoint lawyers for
indigent defendants, there is no legal representation
automatically provided once the case i[s] appealed to the
Federal level.” Id., at 22996.8 He then cited discussions
by the Chief Judge of the Eleventh Circuit and the
NAACP devoted exclusively to errors found by federal
courts during habeas corpus review of state capital cases.
Ibid.
In the Senate, Representative Conyers’ language was
first replaced with Representative Gekas’ provision for
counsel for §2254 and §2255 petitioners, and then a sub
sequent amendment substituted the text of the Conyers
amendment. See id., at 30401, 30746. Thereafter, the
House amended the bill a final time to insert the language
now codified at §3599(a)(2) while leaving the Conyers
——————
8 Despite his reference to “defendants” and “appealed,” Representa
tive Conyers was clearly discussing state prisoners seeking federal
habeas relief. Representative Gekas’ amendment similarly referred to
postconviction litigants as “defendants,” and the relevant portion of his
amendment was titled “Appeal in Capital Cases” even though it incor
porated §2254 and §2255 proceedings. 134 Cong. Rec. 22984. As
codified, §3599(a)(2) likewise uses the term “defendant” to refer to
habeas petitioners. The Government is incorrect to suggest that the
statute’s use of this term illustrates that it was not written to apply to
postconviction litigants.
12 HARBISON v. BELL
Opinion of the Court
language in place. See id., at 33215. The Government
argues that this late amendment marked the first occasion
on which state prisoners were brought within the bill’s
compass. But Representative Gekas’ initial amendment
explicitly referenced §2254 petitioners, and Representative
Conyers’ proposal sought to provide additional protections
for all capital defendants. The House’s final amendment
is therefore best understood not as altering the bill’s scope,
but as clarifying it.
The Government’s arguments about §3599’s history and
purposes are laced with the suggestion that Congress
simply would not have intended to fund clemency counsel
for indigent state prisoners because clemency proceedings
are a matter of grace entirely distinct from judicial pro
ceedings.9 As this Court has recognized, however,
“[c]lemency is deeply rooted in our Anglo-American tradi
tion of law, and is the historic remedy for preventing
miscarriages of justice where judicial process has been
exhausted.” Herrera v. Collins, 506 U. S. 390, 411–412
(1993) (footnote omitted). Far from regarding clemency as
a matter of mercy alone, we have called it “the ‘fail safe’ in
our criminal justice system.” Id., at 415.10
——————
9 The Government also submits that providing federally funded coun
sel for state clemency proceedings would raise “unique federalism
concerns.” Brief for United States as Amicus Curiae 31. But Tennes
see’s position belies that claim. Following other States that have
litigated the question, Tennessee has expressed “no view” on the
statute’s scope because it “has no real stake in whether an inmate
receives federal funding for clemency counsel.” Brief for Respondent 7;
see also Brief for Current and Former Governors as Amici Curiae 18
(“Contrary to the view of the Solicitor General . . . , the fact that counsel
is appointed by a federal court does not reflect an intrusion on state
sovereignty”).
10 See also Kansas v. Marsh, 548 U. S. 163, 193 (2006) (SCALIA, J.,
concurring) (“Reversal of an erroneous conviction on appeal or on
habeas, or the pardoning of an innocent condemnee through executive
clemency, demonstrates not the failure of the system but its success.
Those devices are part and parcel of the multiple assurances that are
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
Congress’ decision to furnish counsel for clemency pro
ceedings demonstrates that it, too, recognized the impor
tance of such process to death-sentenced prisoners, and its
reference to “other clemency,” §3599(e), shows that it was
familiar with the availability of state as well as federal
clemency proceedings. Moreover, Congress’ sequential
enumeration suggests an awareness that clemency pro
ceedings are not as divorced from judicial proceedings as
the Government submits. Subsection (e) emphasizes
continuity of counsel, and Congress likely appreciated that
federal habeas counsel are well positioned to represent
their clients in the state clemency proceedings that typi
cally follow the conclusion of §2254 litigation.
Indeed, as the history of this case demonstrates, the
work of competent counsel during habeas corpus represen
tation may provide the basis for a persuasive clemency
application. Harbison’s federally appointed counsel devel
oped extensive information about his life history and
cognitive impairments that was not presented during his
trial or appeals. She also litigated a claim under Brady v.
Maryland, 373 U. S. 83 (1963), based on police records
that had been suppressed for 14 years. One Court of
Appeals judge concluded that the nondisclosure of these
records “undermine[d] confidence in Harbison’s guilty
verdict” because the evidence contained therein could have
supported a colorable defense that a third party murdered
the victim and that Harbison’s codefendant falsely impli
cated him. 408 F. 3d, at 840 (Clay, J., dissenting). Al
though the Court of Appeals concluded that Harbison’s
Brady claim was procedurally defaulted, the information
contained in the police records could be marshaled to
——————
applied before a death sentence is carried out”); Dretke v. Haley, 541
U. S. 386, 399 (2004) (KENNEDY, J., dissenting) (“Among its benign if
too-often ignored objects, the clemency power can correct injustices that
the ordinary criminal process seems unable or unwilling to consider”).
14 HARBISON v. BELL
Opinion of the Court
gether with information about Harbison’s background in a
clemency application to the Tennessee Board of Probation
and Parole and the Governor.
Harbison’s case underscores why it is “entirely plausible
that Congress did not want condemned men and women to
be abandoned by their counsel at the last moment and left
to navigate the sometimes labyrinthine clemency process
from their jail cells.” Hain v. Mullin, 436 F. 3d 1168(CA10 2006) (en banc). In authorizing federally funded
counsel to represent their state clients in clemency pro
ceedings, Congress ensured that no prisoner would be put
to death without meaningful access to the “ ‘fail-safe’ ” of
our justice system. Herrera, 506 U. S., at 415.
IV
We conclude that a COA is not required to appeal an
order denying a motion for federally appointed counsel.
We further hold that §3599 authorizes federally appointed
counsel to represent their clients in state clemency pro
ceedings and entitles them to compensation for that repre
sentation. Accordingly, the judgment of the Court of
Appeals is reversed.
It is so ordered.
Cite as: 556 U. S. ____ (2009) 1
ROBERTS, C. J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–8521
_________________
EDWARD JEROME HARBISON, PETITIONER v.
RICKY BELL, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 1, 2009]
CHIEF JUSTICE ROBERTS, concurring in the judgment.
I agree with much of the Court’s opinion. 18 U. S. C.
§3599(a)(2) entitles indigent federal habeas petitioners to
appointed counsel “in accordance with” subsection (e).
Subsection (e) specifies that the appointed counsel “shall
represent the defendant throughout every subsequent
stage of available judicial proceedings . . . and shall also
represent the defendant in such . . . proceedings for execu
tive or other clemency as may be available to the defen
dant.” Nothing in the text of §3599(e) excludes proceed
ings for available state clemency, and, as the Court points
out, there are good reasons to expect federal habeas coun
sel to carry on through state clemency proceedings. See
ante, at 12–14.
At the same time, the “plain language of §3599,” ante, at
8, does not fully resolve this case. The obligation in sub
section (e) that the appointed counsel represent the defen
dant in “every subsequent stage of available judicial pro
ceedings” is not on its face limited to “federal” proceedings,
just as there is no such limitation with respect to clem
ency. Yet it is highly unlikely that Congress intended
federal habeas petitioners to keep their federal counsel
during subsequent state judicial proceedings. See Hain v.
Mullin, 436 F. 3d 1168, 1178 (CA10 2006) (Briscoe, J.,
dissenting) (“[I]t cannot seriously be suggested that Con
2 HARBISON v. BELL
ROBERTS, C. J., concurring in judgment
gress intended, in the event a state capital prisoner ob
tains federal habeas relief and is granted a new trial, to
provide federally-funded counsel to represent that pris
oner in the ensuing state trial, appellate, and post
conviction proceedings . . .”). Harbison concedes as much.
Reply Brief for Petitioner 11–12; Tr. of Oral Arg. 5–6, 15.
If there were no way to read the words of the statute to
avoid this problematic result, I might be forced to accept
the Government’s invitation to insert the word “federal”
into §3599(e)—a limitation that would have to apply to
clemency as well. But fortunately the best reading of the
statute avoids the problem: Section 3599(e)’s reference to
“subsequent stage[s] of available judicial proceedings”
does not include state judicial proceedings after federal
habeas, because those are more properly regarded as new
judicial proceedings.
The meaning of that phrase is not entirely plain, but it
is plain that not every lawsuit involving an inmate that
arises after the federal habeas proceeding is included.
Surely “subsequent stage[s]” do not include, for example, a
challenge to prison conditions or a suit for divorce in state
court, even if these available judicial proceedings occur
subsequent to federal habeas. That must be because these
are new proceedings rather than “subsequent stage[s]” of
the proceedings for which federal counsel is available.
Once it is acknowledged that Congress has drawn a line at
some point, this is the “best reading” of the statutory
language. Post, at 3 (THOMAS, J., concurring in judgment).
JUSTICE THOMAS does not disagree. Instead, he con
tends that it is not necessary to decide what the first part
of the sentence means in deciding what the second part
means. Post, at 4. We have said that “[w]e do not . . .
construe statutory phrases in isolation; we read statutes
as a whole.” United States v. Morton, 467 U. S. 822, 828
(1984). This certainly applies to reading sentences as a
whole.
Cite as: 556 U. S. ____ (2009) 3
ROBERTS, C. J., concurring in judgment
I entirely agree with JUSTICE THOMAS that “Congress’
intent is found in the words it has chosen to use,” and that
“[o]ur task is to apply the text, not to improve upon it,”
even if that produces “very bad policy.” Post, at 3 (internal
quotation marks omitted). Here, we need only apply the
text of §3599 to conclude that federal counsel is available
for state clemency, but not for subsequent state court
litigation. I therefore concur in the result.
Cite as: 556 U. S. ____ (2009) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–8521
_________________
EDWARD JEROME HARBISON, PETITIONER v.
RICKY BELL, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 1, 2009]
JUSTICE THOMAS, concurring in the judgment.
I agree that under 28 U. S. C. §2253(c)(1)(A), a certifi
cate of appealability was not required to seek appellate
review of the issue in this case. See ante, at 2–3; see also
post, at 1 (SCALIA, J., concurring in part and dissenting in
part). I further agree with the Court that 18 U. S. C.
§§3599(a)(2) and (e) entitle eligible state postconviction
litigants to federally funded counsel in available state
clemency proceedings. See ante, at 2, 5. As even JUSTICE
SCALIA acknowledges in his dissenting opinion, the statute
“contains no express language limiting its application to
proceedings in a federal forum.” Post, at 8; see also ante,
at 1 (ROBERTS, C. J., concurring in judgment) (“Nothing in
the text of §3599(e) excludes proceedings for available
state clemency . . .”). By its express terms, the statute
“entitle[s]” eligible litigants to appointed counsel who
“shall represent the defendant . . . in such . . . proceedings
for executive or other clemency as may be available to the
defendant.” §§3599(a)(2), (e). Because the statute applies
to individuals challenging either state or federal convic
tions, see §3599(a)(2), and because state clemency is the
only clemency available to those challenging state convic
tions, §§3599(a)(2) and (e) necessarily entitle eligible state
postconviction litigants to federally funded counsel in
state clemency proceedings.
2 HARBISON v. BELL
THOMAS, J., concurring in judgment
I disagree, however, with the assumption that §3599
must be limited to “federal” proceedings in at least some
respects. Ante, at 6; ante, at 1–2 (ROBERTS, C. J., concur
ring in judgment); post, at 3–4. The majority and dissent
read such a limitation into subsection (a)(1) of the statute.
But that subsection, like subsection (a)(2), “contains no
language limiting its application to federal capital defen
dants. It provides counsel to indigent defendants in ‘every
criminal action in which a defendant is charged with a
crime which may be punishable by death.’ ” Post, at 3
(quoting §3599(a)(1)). The majority, then, compounds its
error by attempting to discern some distinction between
subsections (a)(1) and (a)(2), to which it properly declines
to add an extratextual “federal” limitation, see ante, at 5–
6. The dissent seizes on this inconsistency between the
majority’s interpretation of subsections (a)(1) and (a)(2),
but responds by incorrectly reading a parallel “federal”
limitation into subsection (a)(2), see post, at 3–4. In the
dissent’s view, “it is perfectly reasonable to assume” that
subsection (a)(2) is limited to federal postconviction pro
ceedings—including clemency proceedings—“even where
the statute contains no such express limitation.” Post, at
3.
THE CHIEF JUSTICE, in contrast, finds a “federal” limita
tion in a clause of subsection (e) that is not before this
Court in order to cabin the reach of today’s decision. He
observes that the text of subsection (e) includes no “fed
eral” limitation with respect to any of the proceedings
listed in that subsection. But THE CHIEF JUSTICE finds a
way to avoid this “problematic result” by adding a differ
ent limitation to §3599. In his view, the “best” reading of
the phrase “subsequent stage[s] of available judicial pro
ceedings” is one that excludes “state judicial proceedings
after federal habeas” proceedings because they are
“new”—not “subsequent”—judicial proceedings. Ante, at 2.
Without this limitation, THE CHIEF JUSTICE explains, “[he]
Cite as: 556 U. S. ____ (2009) 3
THOMAS, J., concurring in judgment
might be forced to accept the Government’s invitation to
insert the word ‘federal’ into §3599(e)—a limitation that
would have to apply to clemency as well”—because he
finds it “highly unlikely that Congress intended” for there
to be no federal limitation at all in subsection (e). Ante, at
1–2.
This Court is not tasked with interpreting §3599 in a
way that it believes is consistent with the policy outcome
intended by Congress. Nor should this Court’s approach
to statutory construction be influenced by the supposition
that “it is highly unlikely that Congress intended” a given
result. See ante, at 1 (ROBERTS, C. J., concurring in judg
ment). Congress’ intent is found in the words it has cho
sen to use. See West Virginia Univ. Hospitals, Inc. v.
Casey, 499 U. S. 83, 98 (1991) (“The best evidence of [Con
gress’] purpose is the statutory text adopted by both
Houses of Congress and submitted to the President”).
This Court’s interpretive function requires it to identify
and give effect to the best reading of the words in the
provision at issue. Even if the proper interpretation of a
statute upholds a “very bad policy,” it “is not within our
province to second-guess” the “wisdom of Congress’ action”
by picking and choosing our preferred interpretation from
among a range of potentially plausible, but likely inaccu
rate, interpretations of a statute. Eldred v. Ashcroft, 537
U. S. 186, 222 (2003); see also TVA v. Hill, 437 U. S. 153,
194 (1978) (“Our individual appraisal of the wisdom or
unwisdom of a particular course consciously selected by
the Congress is to be put aside in the process of interpret
ing a statute”). “Our task is to apply the text, not to im
prove upon it.” Pavelic & LeFlore v. Marvel Entertainment
Group, Div. of Cadence Industries Corp., 493 U. S. 120,
126 (1989).
This statute’s silence with respect to a “federal” limita
tion in no way authorizes us to assume that such a limita
tion must be read into subsections (a) and (e) in order to
4 HARBISON v. BELL
THOMAS, J., concurring in judgment
blunt the slippery-slope policy arguments of those opposed
to a plain-meaning construction of the provisions under
review, see ante, at 8–9. And Congress’ silence certainly
does not empower us to go even farther and incorporate
such an assumption into the text of these provisions. Post,
at 7–8. Moreover, the Court should not decide a question
irrelevant to this case in order to pre-empt the “problem
atic” results that might arise from a plain-text reading of
the statutory provision under review. See ante, at 2
(ROBERTS, C. J., concurring in judgment). Whether or not
THE CHIEF JUSTICE’s construction of the “subsequent
stage of available judicial proceedings” clause of subsec
tion (e) is correct, it is irrelevant to the proper interpreta
tion of the clemency clause of subsection (e). Even if the
statute were to authorize federal postconviction counsel to
appear in state proceedings other than state clemency
proceedings, a question not resolved by today’s decision,
that conclusion would not provide a legitimate basis for
adopting the dissent’s atextual interpretation of the clem
ency clause of subsection (e). The “best” interpretation of
the clemency clause does not turn on the unresolved
breadth of the “subsequent stage of available judicial
proceedings” clause.
Rather, the Court must adopt the interpretation of the
statute that is most faithful to its text. Here, the absence
of a “federal” limitation in the text of subsections (a) and
(e) of §3599 most logically suggests that these provisions
are not limited to federal clemency proceedings. “If Con
gress enacted into law something different from what it
intended, then it should amend the statute to conform it to
its intent. It is beyond our province to rescue Congress
from its drafting errors, and to provide for what we might
think is the preferred result. ” Lamie v. United States
Trustee, 540 U. S. 526, 542 (2004) (internal quotation
marks and ellipses omitted). Accordingly, I concur in the
judgment.
Cite as: 556 U. S. ____ (2009) 1
Opinion of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–8521
_________________
EDWARD JEROME HARBISON, PETITIONER v.
RICKY BELL, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 1, 2009]
JUSTICE SCALIA, with whom JUSTICE ALITO joins, con
curring in part and dissenting in part.
I agree with the Court that Harbison was not required
to obtain a certificate of appealability under 28 U. S. C.
§2253(c)(1)(A) before appealing the District Court’s denial
of his motion to expand counsel’s appointment. See ante,
at 2–3. I do not agree, however, that 18 U. S. C. §3599gives state prisoners federally funded counsel to pursue
state clemency. While purporting to adopt a “straightfor
ward reading of the statute,” ante at 5, the Court in fact
selectively amends the statute—inserting words in some
places, twisting their meaning elsewhere. Because the
statute is most naturally and coherently read to provide
federally funded counsel to capital defendants appearing
in a federal forum, I would affirm the decision of the Sixth
Circuit and hold that Harbison was not entitled to feder
ally funded counsel to pursue state clemency.
I
Title 18 U. S. C. §3599(a)(2) provides for the appoint
ment of counsel as follows:
“In any post conviction proceeding under section 2254
or 2255 of title 28, United States Code, seeking to va
cate or set aside a death sentence, any defendant who
is or becomes financially unable to obtain adequate
2 HARBISON v. BELL
Opinion of SCALIA, J.
representation or investigative, expert, or other rea
sonably necessary services shall be entitled to the ap
pointment of one or more attorneys and the furnishing
of such other services in accordance with subsections
(b) through (f).
Section 3599(e) defines the scope of appointed counsel’s
representation:
“Unless replaced by similarly qualified counsel upon
the attorney’s own motion or upon motion of the de
fendant, each attorney so appointed shall represent
the defendant throughout every subsequent stage of
available judicial proceedings, including pretrial pro
ceedings, trial, sentencing, motions for new trial, ap
peals, applications for writ of certiorari to the Su
preme 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 ex
ecutive or other clemency as may be available to the
defendant.”
As the Court notes, the first of these provisions entitled
Harbison to counsel for §2254 proceedings. And the sec
ond of them, without any express qualification, provides
for counsel’s continued representation through “such . . .
proceedings for executive or other clemency as may be
available to the defendant,” which in petitioner’s case
would include state clemency proceedings. The Court thus
concludes that the statute’s “plain language” provides
Harbison federally funded counsel to represent him in
state clemency proceedings. Ante, at 5.
But the Court quickly abandons its allegedly “plain”
reading of the statute when it confronts the subsection
that precedes these two, which provides:
Cite as: 556 U. S. ____ (2009) 3
Opinion of SCALIA, J.
“Notwithstanding any other provision of law to the
contrary, in every criminal action in which a defen
dant is charged with a crime which may be punishable
by death, a defendant who is or becomes financially
unable to obtain adequate representation or investiga
tive, expert, or other reasonably necessary services at
any time either–
“(A) before judgment; or
“(B) after the entry of a judgment imposing a
sentence of death but before the execution of that
judgment;
“shall be entitled to the appointment of one or more
attorneys and the furnishing of such other services in
accordance with subsections (b) through (f).”
§3599(a)(1).
The Court states that “(a)(1) describes federal capital
defendants.” Ante, at 4. But according to the Court’s
mode of analysis, that is not so. Subsection (a)(1), like
subsection (e), contains no language limiting its applica
tion to federal capital defendants. It provides counsel to
indigent defendants in “every criminal action in which a
defendant is charged with a crime which may be punish
able by death.” §3599(a)(1) (emphasis added). Why, then,
is subsection (a)(1) limited to federal capital defendants?
Because, as the Court notes, “the statute is primarily
concerned with federal criminal actions and (a)(1) includes
no language suggesting that it applies more broadly.”
Ante, at 6 (footnote omitted).
Quite right. Section 3599 was enacted as part of a bill
that created a new federal capital offense, see ibid., n. 3,
and it is perfectly reasonable to assume that a federal
statute, providing federally funded counsel, applies in
federal proceedings only, even where the statute contains
no such express limitation. Cf. Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet. 243, 247–248 (1833). But there
4 HARBISON v. BELL
Opinion of SCALIA, J.
is no basis for adopting that reading with respect to only
half the statute. If subsection (a)(1) is limited to federal
proceedings, then subsection (e), which likewise contains
no express federal limitation, is similarly limited. We
cannot give the same silence (omission of the limiting
word “federal”) in adjacent and simultaneously enacted
subsections of the same law (§3599) divergent meanings.
The Court advances two arguments for reading subsec
tion (e) more broadly. First, it claims that unlike subsec
tion (a)(1), “subsection (a)(2) refers to state litigants.”
Ante, at 6. It most certainly does not. It refers to proceed
ings under §2254 and §2255—proceedings under federal
statutes providing federal causes of action in federal court.
Read together, subsections (a)(1) and (a)(2) provide feder
ally funded counsel for persons convicted of capital crimes
who are appearing in federal court. Subsection (a)(2)
neither undermines the Court’s earlier statement that
“the statute’s primary focus is federal” proceedings, nor
gives the Court license to insert words selectively into the
statutory text.
The Court next reasons that the phrase “executive or
other clemency” suggests that subsection (e) includes state
clemency proceedings. Since (the argument goes) federal
clemency is exclusively executive, the word “other” must
refer to state clemency, or else it would be superfluous.
But the drafting history, which the Court thinks relevant,
ante, at 10–11, defeats the inference the Court wishes to
draw. The current text of subsection (e) first appeared in
a version of the bill that included what is now subsection
(a)(1) (which the Court concedes deals only with federal
proceedings), but not subsection (a)(2) (which the Court
would deem applicable to state proceedings). 134 Cong.
Rec. 22995 (1988). In other words, at the time of its intro
duction, subsection (e) applied only to federal defendants,
and the phrase “or other clemency” was unquestionably
superfluous.
Cite as: 556 U. S. ____ (2009) 5
Opinion of SCALIA, J.
In any event, the Court’s reading places a great deal of
weight on avoiding superfluity in a statute that is already
teeming with superfluity. Item: Subsection (a)(2) need
lessly refers to §2255 proceedings even though subsections
(a)(1) and (e) taken together would provide federal capital
defendants with counsel in §2255 proceedings. Item:
Subsection (a)(2) provides counsel “in accordance with
subsections (b) through (f)” even though subsections (b)
and (c) have no conceivable relevance to subsection (a)(2).*
Item: Subsection (e) provides counsel “throughout every
subsequent stage of available judicial proceedings,” includ
ing “all available post-conviction process” (emphasis
added). The first use of the term “available” is already of
dubious value (is counsel expected to represent a defen
dant in unavailable proceedings?) but its needless repeti
tion is inexplicable. In a statute that is such a paragon of
shoddy draftsmanship, relying upon the superfluity of “or
other” to extend the statute’s application from federal to
state proceedings is quite absurd—and doubly absurd
when that extension is illogically limited to the subsection
in which “or other” appears.
II
The Court’s reading of subsection (e) faces a second
substantial difficulty. Subsection (e) provides that coun
sel, once appointed,
“shall represent the defendant throughout every sub
sequent stage of available judicial proceedings, includ
ing pretrial proceedings, trial, sentencing, motions for
——————
* Subsection (b) details the requisite qualifications for a lawyer ap
pointed “before judgment”; but appointments under subsection (a)(2)
are made only after judgment. Subsection (c) requires that a lawyer
appointed after judgment have been “admitted to practice in the court
of appeals for not less than five years” (emphasis added); but the
postconviction proceedings dealt with by subsection (a)(2) take place in
federal district court.
6 HARBISON v. BELL
Opinion of SCALIA, J.
new trial, appeals, applications for writ of certiorari to
the Supreme Court of the United States, and all
available post-conviction process, together with appli
cations for stays of execution and other appropriate
motions and procedures.” §3599(e).
In other words, once counsel is appointed under (a)(2),
petitioner is entitled to federal counsel “throughout every
subsequent stage of available judicial proceedings.” The
Government argues that, if subsection (e) is not limited to
federal proceedings, then a §2254 petitioner who obtains
federally funded counsel will retain that counsel, at fed
eral expense, in all “subsequent” state-court proceedings,
including the retrial that follows the grant of federal
habeas relief. The Court disagrees, on the ground that a
new trial represents the “commencement of new judicial
proceedings.” Ante, at 9.
I need not enter that controversy. What is clear, at
least, is that (if subsection (e) includes state proceedings)
federally funded counsel would have to represent petition
ers in subsequent state habeas proceedings. The Court
tries to split the baby here, conceding that “a district court
may determine on a case-by-case basis that it is appropri
ate for federal counsel to exhaust [in state court] a claim
in the course of her federal habeas representation.” Ante,
at 9–10, n. 7. The Court tries to derive this discretionary
authority from subsection (e)’s provision for representation
by federal counsel in “other appropriate motions and
procedures.” §3599(e) (emphasis added). But that provi
sion is in addition to, rather than in limitation of, subsec
tion (e)’s unqualified statement that counsel “shall repre
sent the defendant throughout every subsequent stage of
available judicial proceedings, including . . . all available
post-conviction process.” The provision then continues:
“together with applications for stays of execution and other
appropriate motions and procedures.” (Emphasis added.)
Cite as: 556 U. S. ____ (2009) 7
Opinion of SCALIA, J.
There is no way in which this can be read to limit the
requirement that counsel represent the defendant in
“every subsequent stage of available judicial proceedings,”
which would include habeas proceedings in state court.
The Court seeks to avoid this conclusion by saying that
“[s]tate habeas is not a stage ‘subsequent’ to federal ha
beas,” because “[p]etitioners must exhaust their claims in
state court before seeking federal habeas relief.” Ante, at
9. This is a breathtaking denial of reality, confusing what
should be with what is. It is rather like saying that mur
der does not exist because the law forbids it. To be sure,
petitioners are supposed to complete state postconviction
proceedings before pursuing relief in federal court. But
they often do not do so, and when they do not our opinions
permit them to seek stays or dismissals of their §2254
petitions in order that they may thereafter (subsequently)
return to state court to exhaust their claims. See Rhines
v. Weber, 544 U. S. 269, 277–278 (2005); Pliler v. Ford, 542
U. S. 225, 228 (2004). Additionally, inmates may—as
petitioner did in this case—file successive state habeas
petitions after §2254 proceedings are complete. See Har
bison v. State, No. E2004–00885–CCA–R28–PD, 2005 WL
1521910, *1 (Tenn. Crim. App., June 27, 2005). These
subsequent state proceedings are not rare but common
place, and it is inconceivable (if state proceedings are
covered) that subsection (e) does not refer to them. In
deed, one would think that subsection (e) refers especially
to them. And what kind of an incoherent statute would it
be that allows counsel for de-facto-subsequent federal
habeas claims that should have been brought earlier (see
§3599(a)(2)) but does not allow counsel for subsequent
state habeas claims that have the same defect?
If §3599(e) includes state proceedings (as the Court
holds), and if “subsequent” is given its proper scope
(rather than the tortured one adopted by the Court)—then
§3599(a)(2)’s limitation of federally provided counsel to
8 HARBISON v. BELL
Opinion of SCALIA, J.
only federal habeas proceedings would amount to a dead
letter. A capital convict could file for federal habeas with
out first exhausting state postconviction remedies, obtain
a stay or dismissal of that federal petition, and return to
state court along with his federally funded lawyer. In
deed, under our decision in McFarland v. Scott, 512 U. S.
849 (1994), he need not even file an unexhausted federal
habeas petition; he can file a stand-alone “motion request
ing the appointment of habeas counsel,” id., at 859, and
obtain federally funded counsel that he can then take back
for the subsequent state proceedings. The question per
sists: Why would §3599(a)(2) provide counsel in only fed
eral habeas proceedings, when §3599(e) makes it so easy
to obtain federally funded counsel for state habeas pro
ceedings as well?
* * *
Concededly, §3599 contains no express language limit
ing its application to proceedings in a federal forum. And
yet Harbison, the Government, and the Court all read part
of that section to refer to federal proceedings only. The
Court’s refusal to extend that limitation to the entirety of
§3599 is untenable. It lacks a textual basis and has the
additional misfortune of producing absurd results, which
the majority attempts to avoid by doing further violence to
the statutory text. I would read the statute as providing
federal counsel to capital convicts appearing in a federal
forum, and I accordingly would affirm the judgment of the
Sixth Circuit.