http://www.markschwab.us/legal/replybrieffederal.htm
http://www.markschwab.us/legal/Schwab-Reply-Brief.pdf
ny-821133
No. 08-13435-P
_____________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
MARK DEAN SCHWAB,
Plaintiff - Appellant,
v.
WALTER A. MACNEIL, et al.,
Defendants - Appellees,
Appeal from the United States District Court for the Middle District of
Florida, Jacksonville Division
(District Court Docket No. 3:08-cv-507-J-33)
DEATH WARRANT CASE EXECUTION SCHEDULED FOR JULY 1, 2008
REPLY BRIEF FOR APPELLANT
Charles E. Patterson
MORRISON & FOERSTER LLP
555 West Fifth Street, Suite 3500
Los Angeles, California, 90013-1024
(213) 892-5200
Mitchell M. Wong
Damion K. L. Stodola
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, New York 10024
(212) 468-8000
Attorneys for Appellant Mark Dean Schwab
ny-821133 i
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS...................................................................................... i
TABLE OF AUTHORITIES ..............................................................................iii
GLOSSARY......................................................................................................... v
REPLY STATEMENT REGARDING ORAL ARGUMENT........................... vi
CERTIFICATE OF TYPE SIZE AND STYLE ................................................ vii
SUMMARY OF REPLY ..................................................................................... 1
REPLY ................................................................................................................. 4
I. THE STATE DOES NOT DISPUTE THAT THE DISTRICT
COURT ERRED IN HOLDING THAT MR. SCHWAB’S MOTION
FOR RECONSIDERATION WAS UNTIMELY. .................................... 4
II. THE DISTRICT COURT’S DISMISSAL OF MR. SCHWAB’S
COMPLAINT WAS AN ABUSE OF DISCRETION AS A MATTER
OF LAW. ................................................................................................... 6
A. The State’s Argument Regarding Computation of the Baze
Mandate is Not on Appeal. .............................................................. 7
B. The State Erroneously Argues that Mr. Schwab’s Complaint
Deserved to be Dismissed Because His Lawyers Missed A
Deadline Due to an Intervening Law Prohibiting Them From
Acting on Mr. Schwab’s Behalf. ..................................................... 7
C. The State Raises Two New Arguments That Were Not
Preserved for Appeal. ...................................................................... 9
D. The State’s Unpreserved Arguments Lack Merit.......................... 10
ny-821133 ii
III. THE STATE DOES NOT DISPUTE THAT THE 1995 POLICY
DOES NOT PROHIBIT THE DISTRICT COURT FROM
APPOINTING THE FEDERAL DEFENDER........................................ 13
IV. ALTHOUGH THE GRANT OF CERTIORARI IN HARBISON
DOES NOT AFFECT THE DISPOSITION OF THIS
APPEAL, IT CONFIRMS THAT THE PURPORTED POLICY
IN THE 1995 LETTER CANNOT BE VALID. ..................................... 15
CONCLUSION .................................................................................................. 17
CERTIFICATE OF COMPLIANCE .............................................................CC-1
CERTIFICATE OF SERVICE PURSUANT TO
FEDERAL RULE OF APPELLATE PROCEDURE 25...............................CS-1
ny-821133 iii
TABLE OF AUTHORITIES
Cases
Allen v. State of Ala.,
728 F.2d 1384, 1387 (11th Cir. 1984) ..................................................9-10
Baze v. Rees,
128 S. Ct. 1520 (2008)........................................................................... 2, 8
Becker v. Montgomery,
532 U.S. 757, 121 S. Ct. 1801 (2001).....................................................4-5
Bettis v. Toys “R” Us,
2008 WL 961553 (11th Cir. 2008) (unpublished disposition) .................. 9
Edelman v. Lynchburg College,
535 U.S. 106, 122 S. Ct. 1145 (2002)........................................................ 5
Hill v. McDonough,
464 F.3d 1256 (11th Cir. 2006) ......................................................3, 10-12
In re Greenberg,
2006 WL 1594202 (11th Cir. June 9, 2006) (per curiam)
(unpublished disposition)........................................................................... 9
Harbison v. Bell.
2008 WL 2484732 (U.S. June 23, 2008) .................................... 3-4, 15-16
Jones v. Harrell,
858 F.2d 667 (11th Cir. 1988) ................................................................. 10
Lightbourne v. McCollum,
969 So.2d 326, 345 (Fla. 2007) ............................................................... 11
Schwab v. State,
969 So.2d 318, 321 (Fla. 2008) ..........................................................12-13
State v. Kilgore,
ny-821133 iv
976 So. 2d 1066 (Fla. 2006) ...................................................................... 8
Statutes
18 U.S.C. § 3599 ...........................................................................................15-16
Fed.R.App. 41(a)................................................................................................ 17
Other
Harbison v. Bell, No. 07-8521, Petition for Certiorari at 3 (U.S.
Dec. 21, 2007), available at
<http://www.scotusblog.com/wp/wpcontent/
uploads/2008/06/07-8521_pet.pdf> (last visited June
26, 2008)............................................................................................................. 15
ny-821133 v
GLOSSARY 1995 Letter = Letter from The Honorable Gerald Tjoflat to Robert J.
Vossler, Esq. (RX62)
May 19 Order = District Court Order dated May 19, 2008 dismissing case
June 9 Order = District Court Order dated June 9, 2008 denying
Plaintiff’s Motion to Reconsider Under Fed.R.Civ.P.
59(e) and/or 60(b)
CCRC = Capital Collateral Regional Counsel, Plaintiff’s attorneys
in the District Court
ODS = Administrative Office of the United States Courts, Office
of Defender Services
Docket No. = District Court Record
RX___ = Record Excerpt (followed by page number)
Schwab Brief = Brief for Appellant on this appeal
State Brief = “Answer Brief of Appellees” on this appeal
ny-821133 vi
REPLY STATEMENT REGARDING ORAL ARGUMENT
Mr. Schwab does not insist on the presentation of oral argument.
However, should this Court find oral argument to be helpful or necessary,
Mr. Schwab’s counsel are prepared to appear before the Court on short
notice.
ny-821133 vii
CERTIFICATE OF TYPE SIZE AND STYLE The type used in this brief is 14 point Times New Roman, a
proportionally-spaced type face.
ny-821133 1
No. 08-13435-P
_____________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
MARK DEAN SCHWAB,
Plaintiff - Appellant,
v.
WALTER A. MACNEIL, et al.,
Defendants - Appellees,
Appeal from the United States District Court for the Middle District of Florida,
Jacksonville Division
(District Court Docket No. 3:08-cv-507-J-33)
DEATH WARRANT CASE EXECUTION SCHEDULED FOR JULY 1, 2008
BRIEF FOR APPELLANT
SUMMARY OF REPLY
In his opening brief, Mr. Schwab identified three errors requiring reversal:
(1) first, the district court erred in holding that his motion to
reconsider was untimely for lack of a hand-written signature;
(2) second, the district court abused its discretion in dismissing Mr.
Schwab’s case; and
ny-821133 2
(3) third, the district court erred in identifying a purported policy of
this Circuit that precludes it from appointing the federal
defender to represent him.
With respect to the first asserted error (timeliness of motion to reconsider),
the State does not defend the district court’s undeniably incorrect ruling on the
timeliness of Mr. Schwab’s motion to reconsider. Rather, the State merely notes
that the district court nonetheless addressed the merits of Mr. Schwab’s
purportedly untimely motion. Because the State has all but conceded this point,
Mr. Schwab offers no further argument on this issue, and respectfully requests
reversal of the district court’s ruling on this point.
With respect to the second error (abuse of discretion in dismissal), the State
does not address any of the authorities cited by Mr. Schwab showing the dismissal
of his complaint to be an abuse of discretion. Instead, the State essentially offers
four arguments:
First, the State engages in a long, perplexing discussion about
the date on which Baze became a final decision. This issue,
however, is neither on appeal nor even dispositive of this
appeal.
Second, the State argues that the CCRC did, in fact, lack
authority to represent Mr. Schwab. This proposition, however,
is undisputed. Mr. Schwab’s argument—which the State does
not address—is that the district court abused its discretion in
dismissing his complaint on account of a missed deadline
resulting from his lawyers’ inability to proceed.
Third, the State argues that the district court’s dismissal should
be affirmed because Mr. Schwab’s claim might be barred by a
ny-821133 3
statute of limitations. The State’s argument, however, was not
properly preserved for appeal because it was never raised
below. Moreover, because it was never even raised below, it
could not possibly informed the district court’s exercise of
discretion.
Fourth, the State suggests that Hill v. McDonough enables this
Court to simply deny relief to Mr. Schwab, ostensibly because
he was somehow dilatory. 464 F.3d 1256 (11th Cir. 2006).
The State is wrong. First, Mr. Schwab was not dilatory in
bringing this suit a mere three months after the promulgation of
the protocols he challenges. Second, Hill merely denied a stay
of execution—Hill did not hold that courts of appeals can
discretionarily deny relief to which litigants are otherwise
entitled.
With respect to the third issue (the purported policy in 1995 Letter), the
State does not defend the validity of the purported policy. Rather, the State merely
offers only the (factually erroneous) speculation that the undersigned is now acting
as Mr. Schwab’s counsel throughout all proceedings, when in fact, the undersigned
has only been engaged to act on this appeal. See State Brief at 6, 20 & 22. From
this baseless premise, the State incorrectly concludes that the undersigned’s
appellate
appearance now moots Mr. Schwab’s request for new trial counsel.
In its brief, the State raises a fourth issue. The State says that the grant of
certiorari in Harbison v. Bell does not affect the issues on this appeal. Mr. Schwab
agrees that the grant of certiorari has no effect on the matters on this case.
However, Harbison involves the construction of a statute that specifically
authorizes the use of federal defenders in postconviction proceedings for capital
ny-821133 4
cases, including state capital cases. The statute at issue in Harbison therefore
disproves the notion that there can be a valid policy prohibiting the appointment of
federal defenders to handle postconviction proceedings for state capital inmates.
REPLY
I. THE STATE DOES NOT DISPUTE THAT THE DISTRICT COURT
ERRED IN HOLDING THAT MR. SCHWAB’S MOTION FOR
RECONSIDERATION WAS UNTIMELY.
In Mr. Schwab’s opening brief, he first argues that the district court erred in
ruling that Mr. Schwab’s otherwise timely motion for reconsideration was
untimely for lack of a handwritten signature. See Schwab Brief at 11-13; see also
RX135 (district court decision holding that “the Motion to Alter or Amend Final
Judgment pursuant to Fed.R.Civ.P. 59(e) is untimely filed.”).
Mr. Schwab demonstrated that the Electronic Court Filing system contained
an express stipulation that filings are automatically deemed to be signed when
filed, and that Rule 11 allows unsigned papers to be invalidated only if not
promptly corrected. (Within 4½ business hours of learning of the purported
deficiency, Mr. Schwab’s trial lawyers had filed a “corrected” hand-signed copy.
See RX94 (State’s chronology of filings).)
In addition, Mr. Schwab presented authority from the U.S. Supreme Court
holding that the absence of a signature does not invalidate otherwise proper notices
of appeal or EEOC submissions. Becker v. Montgomery, 532 U.S. 757, 121 S.Ct.
ny-821133 5
1801 (2001) (reversing dismissal of complaint for unsigned, but otherwise timely,
notice of appeal); Edelman v. Lynchburg College, 535 U.S. 106, 122 S. Ct. 1145
(2002) (reversing dismissal of EEOC charge for failure to include verification in
otherwise timely filing).
The State offers no defense for the district court’s erroneous understanding
of the ECF stipulations or its mistaken application of Rule 11’s signature
requirement. Instead, the State all but concedes that the district court did, in fact,
err in holding that Mr. Schwab’s motion for reconsideration was untimely. See
State’s Brief at 8 n.5 (“Schwab’s [argument] goes to a matter that made no
difference in the outcome below, and does not impact the proceedings in this
Court.”).
In view of the State’s position, Mr. Schwab does not believe it necessary to
belabor this point and rests on the arguments presented in his opening brief.1
1 Even though the State argues that the district court’s error “does not impact
the proceedings in this Court,” it is error nonetheless. This Court must
therefore reverse the district court, if only to prevent the district court’s
ruling from acting as an erroneous precedent for future cases.
ny-821133 6
II. THE DISTRICT COURT’S DISMISSAL OF MR. SCHWAB’S
COMPLAINT WAS AN ABUSE OF DISCRETION AS A
MATTER OF LAW.
The State offers four arguments in defense of the district court’s exercise of
discretion in dismissing Mr. Schwab’s case and refusing to reconsider the
dismissal.
First, the State argues that the district court correctly measured the time from
which Mr. Schwab’s purported obligation under Judge Conway’s vacated order
began to run. See State Brief at 7-12. Second, the State argues that the district
court was entitled to dismiss Mr. Schwab’s complaint because a Florida law
explicitly and specifically prohibited Mr. Schwab’s lawyers from personally
acting. See State Brief at 12-17. Third, the State suggests that the district court
should be affirmed because a statute of limitations might bar his claims. Finally,
the State suggests that this Court should simply deny Mr. Schwab’s otherwise
meritorious claims because he was purportedly dilatory.
The State’s first argument lacks merit altogether because it is not even on
appeal; its second argument is inconsistent with a well-established body of
controlling authority; and its third and fourth arguments were never presented to
the district court and are not preserved for appeal. Each of these four points is
addressed in greater detail below.
ny-821133 7
A. The State’s Argument Regarding Computation of the
Baze Mandate is Not on Appeal.
The State argues that the district court correctly began the clock from the
date of the Supreme Court’s judgment in Baze, as opposed to the date the mandate
issued. Id. This argument occupies 5½ of the State’s answering brief.
This argument, however, is not even at issue on this appeal! Mr. Schwab
had raised this argument below, but has not asserted it before this Court. See
RX46-RX50 (Schwab’s argument below). The State appears to have copied this
entire irrelevant argument almost verbatim from its prior submission to the district
court. Compare RX96-RX100 (relevant portion of State’s submission to district
court) with State’s Brief at 7-12 (nearly identical section with some revisions).
As expanded upon in the next section, Mr. Schwab’s argument is that even if
the district court had correctly measured the date on which he should have begun
to reopen his case, it was an abuse of discretion for the district court to dismiss Mr.
Schwab’s complaint. See Schwab Brief at 13-22.
B. The State Erroneously Argues that Mr. Schwab’s Complaint
Deserved to be Dismissed Because His Lawyers Missed A
Deadline Due to an Intervening Law Prohibiting Them From
Acting on Mr. Schwab’s Behalf.
In his opening brief, Mr. Schwab argued that the district court abused its
discretion in dismissing the case. See Schwab Brief at 13-22. Specifically, Mr.
Schwab cited a number of Eleventh Circuit cases holding dismissals to be an abuse
ny-821133 8
of discretion even where the noncompliance with court orders was even greater
than the one at bar, id. at 15-19, and where the district court failed to explore less
onerous alternative sanctions, id. at 19-22.
The State does not address any of Mr. Schwab’s cited authorities. The only
point that the State makes is that the CCRC lawyers should have realized long
before State v. Kilgore, 976 So. 2d 1066 (Fla. 2006), that they were conflicted from
acting as Mr. Schwab’s lawyers. See State Brief at 12-14.
The State’s point adds nothing to the analysis of whether the district court
abused its discretion in dismissing Mr. Schwab’s case. The district court, the State
and Mr. Schwab are already all in agreement that the CCRC cannot represent Mr.
Schwab further. See Schwab Brief at 15 n.2. Mr. Schwab’s problem is that,
despite the CCRC’s inability to proceed, the district court refuses to allow the
CCRC to withdraw, and refuses to appoint new counsel for Mr. Schwab.
Moreover, the issue of the CCRC’s statutory authority was plainly not a ruse
fabricated to overturn the dismissal. The CCRC lawyers moved to withdraw on
April 14, 2008—two days before the Supreme Court decided Baze and a month
before the deadline for Mr. Schwab to reopen the case. Compare RX3 Entry 14
(showing 4/14/08 date of motion to withdraw) with Baze v. Rees, 128 S. Ct. 1520
(2008) (showing 4/16/08 date of decision in Baze).
ny-821133 9
The fact pattern at bar is indistinguishable from In re Greenberg, in which
this Court held that it was an abuse of discretion for a district court to dismiss2 a
complaint where the litigant’s attorneys “felt that he was no longer empowered to
represent [the plaintiff] and could not file [papers] on its behalf.” 2006 WL
1594202 (11th Cir. June 9, 2006) (per curiam) (unpublished disposition).
C. The State Raises Two New Arguments
That Were Not Preserved for Appeal.
The State raises two new arguments on appeal to show that the district court
did not abuse its discretion in dismissing Mr. Schwab’s case. First, the State
claims that “Schwab’s Lawsuit is Barred by the Statute of Limitations, Anyway.”
See State Brief at 17 (formatting altered from all caps). Second, the State argues
that “Schwab is Not Entitled to Relief Under Hill v. McDonough, Either.” See
State Brief at 18 (formatting altered from all caps).
Neither of these arguments was presented to the district court. Nor did the
district court rely upon either of these arguments in its decision. Accordingly, this
Court should follow the long line of its authority holding that it will not address
new issues on appeal that were not presented to the district court. See Allen v.
2 The dismissal here was formally “without prejudice.” However, as argued
in Mr. Schwab’s opening brief, for purposes of appellate review, such
dismissals are treated as though they were “with prejudice” if the effect of
the “without prejudice” dismissal is with prejudice. Schwab Brief at 19-22
(citing Bettis v. Toys “R” Us, 2008 WL 961553 (11th Cir. 2008)
(unpublished disposition)).
ny-821133 10
State of Ala., 728 F.2d 1384, 1387 (11th Cir. 1984) (“It is not the practice of this
court to consider issues on appeal that were not raised in the district court.”) (citing
cases); see also Jones v. Harrell, 858 F.2d 667 (11th Cir. 1988) (“The trustee seeks
to raise two issues on appeal. The first is that the district court erred in setting aside
the default against Harrell because she failed to show good cause under
Fed.R.Civ.P. 55(c). . . . . We doubt that the first issue is properly before this court
since it was not preserved for appeal when the consent judgment was entered.”).
The rule against appellate consideration of newly presented issues applies
with particular force here because the newly presented issues do not help answer
the question of whether the district court abused its discretion. The State never
presented these two issues to the district court, and the district court did not address
them in its opinion. Thus, the district court could not possibly have exercised its
discretion based on these two issues when, in fact, these issues were never before
the district court at all.
D. The State’s Unpreserved Arguments Lack Merit.
Even if this Court were to consider the State’s unpreserved arguments, the
unpreserved arguments are meritless. Citing Hill v. McDonough, 464 F.3d 1256
(11th Cir. 2006), the State argues that “the equities of this case compel the denial
of all relief.” State Brief at 22. Although not express, the State appears to be
suggesting that this Court simply abandon Mr. Schwab’s appeal.
ny-821133 11
Hill does not support the State’s argument at all. In Hill, a condemned
plaintiff “filed his §1983 complaint four days before his previously scheduled
execution date of January 24, 2006.” Id. at 1259. Hill could have brought his
complaint over six years before the filing date. Id. (“The Florida Supreme Court
considered a challenge . . . on similar ground as early as 2000.”). This Court
therefore “declin[ed] to allow further litigation of a § 1983 case filed essentially on
the eve of execution.
Mr. Schwab’s case is readily distinguishable from Hill. Whereas the lethalinjection
protocol in Hill had been amenable to review for over six years before
Hill filed suit, the protocol challenged by Mr. Schwab was only three months old at
the time he brought his complaint; the present protocol came into effect in August
2007, and Schwab initiated this action on November 13, 2007. Compare
Lightbourne v. McCollum, 969 So.2d 326, 345 (Fla. 2007) (“August 2007
procedures”) with RX6 (complaint stamped with November 13, 2007 filing date).
Moreover, whereas Hill filed only four days before his own execution,
Schwab’s complaint was filed almost eight months before his present execution
date of July 1. Compare Hill, 464 F.3d at 1259, with RX6 (complaint stamped
with November 13, 2007 filing date). The fact that the U.S. Supreme Court issued
a five-month stay on Mr. Schwab’s case cannot be ascribed as dilatory behavior on
his part. The pattern of delay that was present in Hill is simply not present here.
ny-821133 12
Finally, unlike Hill, Mr. Schwab is not requesting a stay on this appeal.
Rather, Mr. Schwab seeks only two narrow forms of relief. First, he seeks the
reinstatement of his complaint. Second, he seeks consideration of his motion for
appointment of counsel (including the federal defender, as provided by 18 U.S.C. §
3006A), unburdened by the district court’s erroneous belief that the 1995 Letter
prohibited the federal defender’s involvement.
The State’s suggestion that Schwab’s complaint is barred by a statute of
limitations is similarly without merit. The lethal-injection protocol challenged by
Schwab came into effect in August 2007. Schwab filed his complaint about three
months later on November 3, 2007—well within any limitations period for Section
1983 claims.
The State argues that this Court should regard February 14, 2000, as the
accrual date for Mr. Schwab’s claims because that was the deadline for Mr.
Schwab to elect his method of execution. In other words, the State suggests that
Mr. Schwab should have prognosticated that he would be subject to an
unconstitutional new lethal-injection protocol that would be implemented eight
years later. This argument is plainly without merit.
Moreover, the State’s position would place this Court in direct conflict with
the Florida Supreme Court, which rejected the State’s argument that Mr. Schwab
should have raised his challenge “within one year of the time that lethal injection
ny-821133 13
became a method of execution.” Specifically, the Florida Supreme Court held that
because “Schwab relies on the execution of Angel Diaz,” he necessarily raises “a
claim that did not exist when lethal injection was first authorized.” Schwab v.
State, 969 So.2d 318, 321 (Fla. 2008).
III. THE STATE DOES NOT DISPUTE THAT THE 1995 POLICY
DOES NOT PROHIBIT THE DISTRICT COURT FROM
APPOINTING THE FEDERAL DEFENDER.
In the order denying reconsideration of Mr. Schwab’s motion for the
appointment of a federal defender to replace the now-conflicted CCRC, the district
court discussed the purported policy in the 1995 Letter:
The Defender confirms therein that the Defender has
been specifically advised that it cannot represent Plaintiff
in any matter related to his conviction and death
sentence, including a civil rights action raised pursuant to
42 U.S.C. § 1983. The Defender states that [the 1995
Letter] is still in effect today, and the Defender does not
have the authority to represent Florida death sentenced
inmates in state or federal court in any matters related to
the convictions and death sentences.
RX146.
In his opening brief, Mr. Schwab identified four sources of error in the
district court’s application of the policy. First, the 1995 Letter does not identify
itself as a formal expression of the Circuit Council’s policy, and the district court
misconstrued the letter as establishing such a policy. See Schwab Brief at 22-24.
ny-821133 14
Second, to the extent that such a policy exists, it was also promulgated in
contravention of 28 U.S.C. §332 because it was promulgated without public notice
or the opportunity to comment. See Schwab Brief at 24-26. Third, to the extent
that such a policy does exist, the policy is inconsistent with the Criminal Justice
Act inasmuch as it prohibits federal defenders from participating in postconviction
challenges such as the one at bar. See Schwab Brief at 26-29. Fourth, to the extent
that a valid and properly promulgated policy exists, the policy should be waived in
view of intervening changes in the law. See Schwab Brief at 29-32.
The State has offered no arguments in defense of the purported policy in the
1995 Letter. Rather, the State suggests throughout its brief that the undersigned’s
appearance in this appeal moots Mr. Schwab’s motion for appointment of trial
counsel. E.g., State Brief at 6, 20 & 22. The State is both logically and factually
incorrect. Logically, the State is also incorrect in equating an entry of appearance
of counsel before the appellate tribunal as the equivalent of appellate counsel
acting at the trial level.
Factually, the State’s premise is also incorrect. The undersigned was
retained solely to represent Mr. Schwab in connection with his appeal of the
counsel issue. The engagement of outside counsel was necessitated by the inability
of the CCRC to proceed. The undersigned has explicitly disavowed any
ny-821133 15
responsibility for Mr. Schwab’s case on remand.3 Accordingly, the undersigned’s
appearance in this case does not moot the issue of the appointment of counsel.
IV. ALTHOUGH THE GRANT OF CERTIORARI IN HARBISON
DOES NOT AFFECT THE DISPOSITION OF THIS APPEAL,
IT CONFIRMS THAT THE PURPORTED POLICY IN THE
1995 LETTER CANNOT BE VALID.
The State correctly brings to this Court’s attention that, three days ago, the
U.S. Supreme Court granted certiorari in Harbison v. Bell. 2008 WL 2484732
(U.S. June 23, 2008). One of the two issues presented in Harbison is whether “18
U.S.C. § 3599(a)(2) and (e) . . . permit[s] federally-funded habeas counsel to
represent a condemned inmate in state clemency proceedings when the state has
denied state-funded counsel for that purpose.” See Harbison v. Bell, No. 07-8521,
Petition for Certiorari at 3 (U.S. Dec. 21, 2007), available at
<http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-8521_pet.pdf>
(last visited June 26, 2008).
3 The State has placed no documents into the record regarding the
undersigned’s engagement to represent Mr. Schwab, and it is unclear what
basis the State had to argue erroneously that the undersigned had agreed to
represent Mr. Schwab in all of his remaining proceedings. The undersigned
represents to this Court both that Mr. Schwab engaged this Firm on June 18,
2008—almost a week before the State even introduced the issue concerning
the scope of Mr. Schwab’s representation—and that the undersigned has no
authority to represent Mr. Schwab in the district court, even on remand.
ny-821133 16
Mr. Schwab agrees with the State that the grant of certiorari itself carries no
precedential value. State Brief at 31. However, the underlying circumstances of
the Harbison case should help inform this Court’s judgment.
The statute at issue in Harbison is further proof that the district court erred
in holding that an Eleventh Circuit policy validly could prohibit the federal
defender from representing “‘those convicted of capital crimes in state court.’”
RX146 n.11 (quoting 1995 Letter). It is not disputed by any of the parties in
Harbison that 18 U.S.C. § 3599—the statute at issue in Harbison—like the
Criminal Justice Act statute, specifically contemplates that federal defenders would
be authorized to represent “those convicted of capital crimes in state court,” which
the purported Eleventh Circuit policy prohibits.
Because the statute authorizes federal defenders to participate in
postconviction proceedings specifically in capital cases (including state capital
cases), the statute would plainly be contravened by any purported policy against
federal defenders participating in such proceedings on behalf of “those convicted
of capital crimes in state court.” RX146 n.11 (quoting 1995 Letter).
ny-821133 17
CONCLUSION
For all of the foregoing reasons, Mr. Schwab respectfully requests that this
Court reverse the district court’s refusal to set aside the dismissal and reinstate the
case, and remand the case to the district court to reconsider the appointment of the
Federal Defender as Mr. Schwab’s counsel. In view of the imminence of his
execution date, Mr. Schwab requests that the mandate issue immediately pursuant
to Fed.R.App. 41(a).
Dated: June 26, 2008 Respectfully submitted,
By: /S/ Mitchell M. Wong .
Charles E. Patterson
(cpatterson@mofo.com)
MORRISON & FOERSTER LLP
555 West Fifth Street, Suite 3500
Los Angeles, California, 90013-1024
(213) 892-5200
Mitchell M. Wong
(mwong@mofo.com)
Damion K. L. Stodola
(dstodola@mofo.com)
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, New York 10024
(212) 468-8000
Page CC-1
ny-821133
CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in
FRAP 32(a)(7)(B). This brief contains 4,466 words, and is printed in 14 point
Times New Roman, a proportionally-spaced type face.
Dated: June 26, 2008
By: /S/ Mitchell M. Wong .
Charles E. Patterson
(cpatterson@mofo.com)
MORRISON & FOERSTER LLP
555 West Fifth Street, Suite 3500
Los Angeles, California, 90013-1024
(213) 892-5200
Mitchell M. Wong
(mwong@mofo.com)
Damion K. L. Stodola
(dstodola@mofo.com)
MORRISON & FOERSTER LLP
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ny-821133
CERTIFICATE OF SERVICE PURSUANT TO FEDERAL RULE OF
APPELLATE PROCEDURE 25
I hereby certify that on this 26th day of June 2008, I served two paper
copies, and one electronic copy (by electronic mail), of the foregoing Reply
Brief for Appellants on each counsel of record for Appellees by placing
same in the United States Mail, overnight first class postage prepaid and
properly addressed as follows:
Kenneth S. Nunnelley
Assistant Attorney General
444 Seabreeze Blvd., 5th Floor
Daytona Beach, FL 32118-3951
In addition, I further certify that on this 26th day of June 2008, I served an
electronic copy of the foregoing Reply Brief for Appellants on each counsel
of record for Appellees by electronic mail.
Dated: June 26, 2008
/s/ Mitchell M. Wong .
Mitchell M. Wong
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