Hill v. Butterworth

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 97-2192
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D.C. Docket No. 4:96-CV-288-MMP
CLARENCE E. HILL, of himself as an individual
and on behalf of himself and all others similarly situated,
Plaintiff-Appellee,
versus
ROBERT A. BUTTERWORTH, Attorney General for the
State of Florida and HARRY K. SINGLETARY, Secretary,
Florida Department of Corrections.
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________________________________________________
(December 15, 1997)
Before HATCHETT, Chief Judge, FAY and FARRIS*, Senior Circuit Judges.
____________________________
*Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
HATCHETT, Chief Judge:
The important issue in this case is whether the district court erred in ruling that the
State of Florida has not achieved “opt-in” status pursuant to the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214. Because of substantial changes in circumstances since the district court$s
rulings, we remand the case to the district court for further proceedings.
When President Clinton signed the AEDPA into law, he expressed his hope that
its first title would “streamline Federal appeals for convicted criminals sentenced to the
death penalty” because “endless death row appeals have stood in the way of justice being
served.” Statement by President William J. Clinton upon Signing S.1965, 32 Weekly
Comp. Pres. Doc. 719 (April 29, 1996). To this aim, section 107(a) of the AEDPA,
codified at Title 28, Chapter 154, sections 2261 through 2266 of the United States Code
(“Chapter 154"), provides generally for a one-time stay of execution,1 a six-month period
of time to file an application for writ of habeas corpus under 28 U.S.C. § 2254,2
1
See 28 U.S.C. § 2262(a)-(c). A three-judge panel of the circuit court must
approve any additional stay of execution. 28 U.S.C. § 2262(c) (referencing 28 U.S.C. §
2244(b)).
2
See 28 U.S.C. § 2263(a). This time period begins to run at the conclusion of the
prisoner’s direct appeal. 28 U.S.C. § 2263(a). The period is tolled during certain events,
such as state post-conviction proceedings. 28 U.S.C. § 2263(b)(2). A prisoner may, for
good cause, move the district court to toll the period for thirty days. 28 U.S.C. §
2263(b)(3).
2
limitations on the scope of collateral review,3 narrow grounds for amending an
application4 and enforceable decision-making deadlines for federal district and circuit
courts.5 These provisions apply, however, only if the capital prisoner’s custodial state
satisfies the provisions of section 2261(b) and (c), discussed herein. Otherwise, the less
restrictive provisions of Title 28, Chapter 153, sections 2241 through 2254 control the
section 2254 proceeding. This appeal concerns the State of Florida’s “opt-in” status, that
is, its eligibility to seek the “streamlined” procedures of Chapter 154.
BACKGROUND
Appellee Clarence Hill is a Florida prisoner on death row. Hill brought this class
action under 42 U.S.C. § 1983 against appellants Robert Butterworth, Florida’s Attorney
General, and Harry Singletary, Florida’s Secretary of the Department of Corrections, in
their official capacities, seeking declaratory and injunctive relief on behalf of all Florida
capital prisoners currently awaiting execution pending the resolution of their state and
federal challenges to their state convictions and sentences. Hill asked the district court to
declare that Florida is not an “opt-in” state and enjoin it from asserting such status in any
3
See 28 U.S.C. § 2264(a) (stating the general rule that district courts may
consider only those claims “raised and decided on the merits in the State courts”).
4
See 28 U.S.C. § 2266(b)(3)(B) (referencing 28 U.S.C. § 2244(b)).
5
See 28 U.S.C. § 2266(b)(1)(A) (180-day deadline for district courts) and §
2261(c)(1)(A) (120-day deadline for circuit courts). The state may enforce these
deadlines by filing a writ of mandamus in the reviewing court. See 28 U.S.C. §
2266(b)(4)(B), (c)(4)(B). Chapter 154 does not impose any deadline on the United States
Supreme Court.
3
state or federal proceeding. On January 16, 1997, after placing the case on an expedited
calendar, issuing a preliminary injunction and holding a bench trial, the district court
certified the proposed class, granted the requested relief and entered final judgment in
favor of Hill. Hill v. Butterworth, 170 F.R.D. 509 (N.D. Fla. 1997) (incorporating by
reference consistent portions of the court’s preliminary injunction order, Hill v.
Butterworth, 941 F. Supp. 1129 (N.D. Fla. 1996)). The district court stated that its
injunction would “remain in full force and effect” “until such time as [Florida] . . .
demonstrate[s] that [it] ha[s] satisfied all of the ‘opt-in’ provisions” of Chapter 154. Hill,
170 F.R.D. at 524.
DISCUSSION
In order for Florida to “opt-in” to Chapter 154, it must be able to answer the
following six questions in the affirmative:
(1) Has it established a “mechanism for the appointment . . . of competent
counsel in State post-conviction proceedings brought by indigent prisoners
whose capital convictions and sentences have been upheld on direct appeal
to the court of last resort in the State or have otherwise become final for
State law purposes”? 28 U.S.C. § 2261(b).
(2) Does the mechanism “offer counsel to all State prisoners under capital
sentence”? 28 U.S.C. § 2261(c).
(3) Does the mechanism “provide for the entry of an order by a court of
record–(1) appointing one or more counsels to represent the prisoner upon a
finding that the prisoner is indigent and accepted the offer or is unable
competently to decide whether to accept or reject the offer; (2) finding,
after a hearing if necessary, that the prisoner rejected the offer of counsel
and made the decision with an understanding of its legal consequences; or
(3) denying the appointment of counsel upon a finding that the prisoner is
not indigent”? 28 U.S.C. § 2261(c)(1)-(3).
4
(4) Does the mechanism provide for counsel’s “compensation[] and
payment of reasonable litigation expenses”? 28 U.S.C. § 2261(b); see also
Mata v. Johnson, 99 F.3d 1261, 1266 (5th Cir. 1996) (finding that Texas is
not an “opt-in” state, although it adequately compensated counsel for
petitioner-appellant), vacated and remanded on other grounds on reh’g, 105
F.3d 209 (5th Cir. 1997).
(5) Is the mechanism established “by statute, rule of its court of last resort,
or by another agency authorized by State law”? 28 U.S.C. § 2261(b).
(6) Does “the rule of court or statute . . . provide standards of competency
for the appointment of such counsel”? 28 U.S.C. § 2261(b).
An answer in the negative to any one of these questions prevents Florida from asserting
“opt-in” status. See 28 U.S.C. § 2261(a).6
On November 4, 1997, the court heard oral argument on two principal issues: (1)
whether the district court erred in finding that Florida fails to “provide standards of
competency,” as required under 28 U.S.C. § 2261(b); and (2) whether the district court
erred in finding that Florida’s appointment mechanism fails meaningfully to “offer
counsel to all State prisoners under capital sentence,” as required under 28 U.S.C. §
2261(c).7
6
The district court found, and the parties agree, that Florida does not provide for a
“unitary review.” See 28 U.S.C. § 2265; Hill, 941 F. Supp. at 1135. Therefore, our
discussion of Chapter 154 does not concern that procedure.
7
Florida raises four other issues on appeal: (1) whether Hill has standing; (2)
whether this case involves a justiciable case or controversy; (3) whether the district court
abused its discretion in certifying the class; and (4) whether the Eleventh Amendment
bars jurisdiction. Upon due consideration, we find the first three issues to be without
merit and unworthy of discussion. Regarding the fourth issue, we agree with the Ninth
Circuit that, under Ex parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does
not serve as a bar to the instant action. Ashmus v. Calderon, 123 F.3d 1199, 1204-06 (9th
Cir. 1997), petition for cert. filed, 66 U.S.L.W. 3178 (U.S. Sept. 5, 1997) (No. 97-391).
5
As to both issues, circumstances have changed materially since this case left the
district court. For instance, Florida brings to our attention many new statutory
amendments, effective June 16, 1997, that may impact its “opt-in” status. E.g., Fla. Stat.
§ 27.701 (establishing three independent Capital Collateral Regional Counsels (CCRCs)
instead of one Capital Collateral Representative (CCR)); § 27.703(3) (requiring post-
conviction counsel “to have participated in a least five felony jury trials, five felony
appeals, or five capital postconviction evidentiary hearings, or any combination of at
least five of such proceedings” prior to court appointment); and § 27.704(1) (requiring
full-time assistant capital collateral counsels to be members in good standing of The
Florida Bar, have three years of criminal law experience and meet the requirements of
section 27.703(3)). Conversely, Hill points out recent adverse developments concerning
Florida’s CCRCs and argues that these militate against Florida in its attempt to “opt-in.”
E.g., In re Rule of Criminal Procedure 3.851 (Collateral Relief after Death Sentence Has
Been Imposed) and Rule 3.850 (Motion to Vacate, Set Aside, or Correct Sentence), No.
82322, — So. 2d —, — (Fla. Oct. 20, 1997) (granting CCRC’s motion to toll filing
deadline for state post-conviction motions until January 15, 1998); In re Amendment to
Florida Rules of Criminal Procedure Capital Postconviction Public Records Production-
Rule 3.852, No. 87688, — So. 2d —, — (Fla. Oct. 20, 1997) (granting CCRCs’ motion
to toll discovery in certain state post-conviction proceedings until January 15, 1998, due
But see Booth v. Maryland, 112 F.3d 139 (4th Cir. 1997), petition for cert. filed, —
U.S.L.W. — (U.S. Aug. 14, 1997) (No. 97-5623).
6
to “a serious problem in both the staffing of the regional offices as well as how pending
cases are assigned to ensure that the offices are separate and thereby can avoid the
question of conflicts in their representations”); Hoffman v. Haddock, 695 So. 2d 682, 684
(Fla. 1997) (granting temporary stay of post-conviction evidentiary hearing based on
CCR’s allegation that it had inadequate funds) (per curiam).
In light of these changes, we cannot conduct any meaningful review of the district
court’s factual findings and their application to the “opt-in” criteria of Chapter 154.
Accordingly, and consistent with the dissolution provision in the district court’s order,
we remand this case to the district court for further proceedings consistent with this
opinion. See Pottinger v. City of Miami, 40 F.3d 1155, 1157 (11th Cir. 1994)
(remanding case to the district court because new facts surfaced at oral argument).8
REMANDED.
8
On remand, we ask the district court to revisit its census approach and otherwise
clarify its interpretation of Chapter 154's offer-of-counsel requirements under 28 U.S.C. §
2261(b), (c). See Hill, 170 F.R.D. at 521-24. Specifically, the court should address the
point in time when the statute requires an inmate to have a lawyer appointed.
7