Albert Holland was convicted of murder in Florida and sentenced to death. He appealed his conviction to the U. S. Supreme Court which denied cert on October 1, 2001, ending direct review and starting a one year period, mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA) within which he may file a Federal habeas. Post conviction counsel, Bradley Collins, was appointed on November 7, 2001.

Twelve days before the year was up Collins filed post conviction motions in State Court tolling the AEDPA deadline. The Florida Supreme Court denied the state motions which became final on December 1, 2005.

During this period Holland wrote numerous unanswered letters to Collins to check on the status of his motions and to remind him to file to file the motions timely. When he did not get answers the wrote to the court and to the state bar asking for information and the replacement of Collins.

Collins did write him one letters and incorrectly told Holland that the deadline passed prior to Collins’ appointment. Three months after the AEDPA deadline passed Collins sent Holland a draft of a writ. After the deadline but prior to the mailing of the draft, Holland filed his own writ which was opposed by the Attorney General on the basis that while he had counsel only Collins could file a writ.

Collins was allowed to resign from the case, new counsel was appointed and the issue of equitable tolling of the statute was briefed to determine whether the late brief would be considered. Both the District Court and the Eleventh Circuit Court of Appeal held that while equitable tolling was allowed Holland did not meet the criteria for equitable tolling.

The Eleventh Circuit held:

that equitable tolling could not be applied in a case, like Holland’s, that involves no more than ‘pure professional negligence’ on the part of a petitioner’s attorney because such behavior can never constitute an ‘extraordinary circumstance.’ . ., .

We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care—in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part—can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling.

The Supreme Court remanded the case to the Eleventh Circuit finding that its test was too strict for a determination whether an equitable tolling of the statute was appropriate. In this case it ruled that “an attorney’s failure to satisfy professional standards of care” was sufficient and it remanded the case to the Eleventh Circuit for reconsideration.

While this is a step in the right direction, the real problem is with the AEDPA. Particularly in capital habeas where just about always counsel is appointed and not retained. The defendant does not get to pick his/her attorney. Yet we allow the failure of counsel to timely file papers (and the deadlines are often obscure and change over time) to result in a defendant losing the right to file the Great Writ and challenge his/her death penalty.

The Supreme Court, yesterday, reversed the denial of a writ of habeas corpus by the Eleventh Circuit Court of Appeals on the grounds that the Circuit Court failed to consider all possible exceptions to the rule that an appellate court accepts the facts as found by the trial court. In this case, which predated the Antiterrorism and Effective Death Penalty Act of 1996, the appellate court adopted the factual findings of the lower court. While generally appellate courts must accept the facts as found by the trial court 28 USCA 2254(d) names eight exceptions to the rule:

“(1) that the merits of the factual dispute were not resolved in the State court hearing;

“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

“(3) that the material facts were not adequately developed at the State court hearing;

“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

“(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

“(7) that the applicant was otherwise denied due process of law in the State court proceeding;

“(8) or unless … the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record .” §2254(d) (emphasis added).

Jefferson was charged with murder of a co-worker on a fishing trip.

As a child, Lawrence Joseph Jefferson suffered major head damage when he was run over by a car. While it is disputed, his trial attorney claimed that an expert told him that it was not necessary to investigate the injury prior to trial. Only minimal evidence was introduced about the injury either at trial or at the sentencing hearing. The habeas alleges that trial counsel was incompetent for not fully investigating the effect of the injury on Jefferson’s behavior. Furthermore in considering the habeas the state court considered only whether or not Section 2254(d)(8) (see above) applied. It found that the factual determination was fairly supported by the record and therefore it denied the habeas.

But there was another issue the court did not consider. After the state court hearing on the habeas the trial court had an ex parte meeting with the prosecutor and asked the prosecutor to draft the decision. Not only was Jefferson not told about the ex parte meeting but his attorneys were neither given the chance to draft an order or to review the prosecutor’s before it was accepted in toto. Thus the state court did not consider whether the trial court may have violated Section 2254(d)(7) and denied Jefferson due process. The Supreme Court vacated the Circuit Court’s decision and remanded the case for further consideration.

In 1981 the Supreme Court in New York v. Belton upheld searches incident to arrest. The Eleventh Circuit like many other courts developed a rule in automobile searches allowing the search of the entire passenger compartment incident to the arrest of a passenger or driver of a vehicle.

Willie Gene Davis was a passenger in a vehicle in 2007. The car was pulled over and Davis was asked by a police officer to get out of the car. As he was getting out of the car he took off his jacket and left it in the car. The officers asked Davis his name and he gave a false name. After discovering his correct name the officers arrested him, handcuffed him and put him in the police car for giving false information to a police officer. Then they searched the vehicle and found a gun in his jacket. He was charged and convicted for possession of an illegal weapon.

While his case was on appeal the Supreme Court decided Arizona v. Gant in which it corrected the interpretation of Belton. The Court made it very clear that the police could only search, absent a danger to the police officers or others, those areas accessible to the arrestee. Since Davis was handcuffed and in the police car at the time of the search he did not have access to the interior of the car he had been a passenger in and the search of the vehicle was illegal.

But the Eleventh Circuit ruled that while the search was illegal the evidence found in the vehicle was still admissible. While the general rule is that evidence illegally seized is inadmissible at trial this exclusionary rule has many exceptions. In most cases evidence seized in good faith is admissible at trial whether or not it was illegally seized. The Eleventh Circuit ruled in United States v. Davis that at the time of Willie Gene Davis’ arrest the law was clear that the officers could search the passenger compartment. The officers acted in good faith in searching the vehicle and therefore the exclusionary rule should not be applied. The Supreme Court has said on numerous occasions that the exclusionary rule is not constitutionally mandated and that its purpose is to deter police misconduct and since the search of the vehicle was done pursuant to then current Eleventh Circuit decisions misconduct was not involved and excluding the evidence would not effectively deter future misconduct.

But let me give an alternative reason to exclude the evidence. I do not believe that the founders of this nation would have approved of the introduction of illegally seized evidence. After all many of the members of the first Congress and the state legislatures who enacted the Bill of Rights participated in or at least approved mob actions which closed or threatened to close the court in many jurisdictions when the courts tried to enforce English rules expanding the right of the government to search individuals

The rule of law requires that illegally seized evidence be excluded. Why should the government be able to benefit from illegally seized evidence. To allow the use of illegally seized evidence to convict a citizen or an alien for that matter only encourages illegal action and discredits the rule of law.

The Eleventh Circuit Court of Appeals in United States v, Rozier upheld laws charging possession of a weapon by a convicted felon against Second Amendment claims.

Eenie Austin, the mother of Christopher Rozier’s child arrived at his house in time to see his current girl friend holding a butcher knife to Rozier’s neck. Austin joined the fray and threw a concrete statute, hitting him in the face. At this point he pulled out a gun to protect himself. The decision does not say who called the police but they arrived later in the day with a search warrant. They searched the residence and found crack cocaine, marijuana, and ammunition. A gun was found buried in the yard.

Rozier was charged with possession of a gun and ammunition by a convicted felon in violation of 18 United States Code Section 922(g)(1) and since he had three major prior drug convictions he was sentenced under the Armed Career Criminal Act to 210 months in prison.

In District of Columbia v. Heller the Supreme Court held that “the Second Amendment conferred an individual right to keep and bear arms.” But Heller also said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . .” Based on this language the Eleventh Circuit found that certain classifications of people, include convicted felons may be denied Second Amendment rights.

James L. Green was convicted in Georgia State Courts of rape and related offenses involving two sexual assault on different victims. He appealed and eventually filed an in pro per petition for habeas corpus in the Eleventh Circuit Court of Appeals.

One of the issues was the incompetence of counsel. Green argued that his counsel was incompetent for failing to move to suppress DNA evidence. The Court ruled that even though counsel should have moved to suppress the evidence due to misstatements in the affidavit supporting the search warrant, Green was not prejudiced by counsel’s failure since there was more than enough evidence to convict him even if the DNA evidence had been excluded. The victim testified that she knew Green prior to the attack and she recognized him when he raped her. Therefore counsel’s incompetence did not prejudice Green and the conviction was upheld with the exception of the aggravated sodomy conviction.

Under Georgia law aggravated sodomy is “any sexual act involving the sex
organs of one person and the mouth or anus of another that is committed with
force and against the will of the other person.” The only evidence to support the charge was one of the victim’s testimony that

while threatening her with a knife, Green forced her to perform oral sex on him and to lick his anus. She further testified: “He pushed me down on the bed and
raped me.

The court found this to be insufficient, as a matter of law, to convict Green on the charge. The jury could not assume based upon this testimony that Green’s penis touched the victim’s anus. Therefore the conviction on this count was reversed.

The Eleventh Circuit Court of Appeals upheld the conviction of Jose Lopez for (1) conspiring to encourage or induce an alien to enter the United States, (2) encouraging or inducing 17 aliens to enter the United States, and (3) and knowingly aiding or assisting an alien, who was inadmissible due to a prior aggravated felony conviction, to enter the United States.

In order to uphold the convictions the court found that “encouraging or inducing an alien” under 8 U.S.C. § 1324(a)(1)(A)(iv) included “helping” an alien to illegally enter the United States. Initially the trial judge refused the request of the government to define “encouraging or inducing.” But while deliberating, the jury sent a note requesting a definition and the judge gave the government’s proposed dictionary definition:

In response to your question concerning “encourage” and “induce,” I instruct you on the below dictionary definitions in conjunction with all of the Court’s instructions in your deliberations.

To “encourage” means to knowingly instigate, to incite to action, to give courage to, to inspirit, to embolden, to raise confidence, to help, to forward, and/or to advise.

To “induce” means to knowingly bring on or about, to affect, cause to influence an act or course of conduct, lead by persuasion or reasoning, incite by motives, and/or to prevail on.

The evidence at trial showed that Lopez accompanied two other men to the Bahamas, where they picked up 19 aliens. It did not show that Lopez at any time spoke with the aliens. Nor did it show that he went with the intent to bring aliens into the country or that he even knew that the aliens were illegal until after the boat left the Bahamas. It did show that while he did not own the boat he steered the boat most of the time.

But as the dissent points out to define “encourage” as “to help” allows Lopez to be convicted for steering the boat. Yet steering the boat is a violation of 8 U.S.C. § 1324(a)(2) which prohibits transportation of illegal aliens. Laws are to be read in such a way that one section of a law does not duplicate another. Furthermore since words should be given there normal meaning and since “to help” is one of the last in a series of definitions for “encourage” in most dictionaries the dissent by Judge Barkett states

The majority’s decision eschews the ordinary and common sense meaning of the word “encourage” in favor of the most general and least meaningful possible interpretation, namely, “to help.”