Some opinions are head shakers, making one wonder how a judge can read what he’s written, review what he’s signed his name to, without that nagging feeling that he has contributed to the death of reason in the name of rule.  And the opinion of 11th Circuit Judge William Pryor in Paul Howell’s case makes my head shake.

It made Jeff Gamso’s head shake too. Maybe more than his head. Rough language ahead:

And, as explained by the Honorable Rosemary Barkett, concurring in the judgment (though reluctantly), he done got fucked. (No, those aren’t the judge’s words, they’re mine. Her words are below.)

[B]oth his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional.

Now, that’s serious shit.

Indeed it is, as was the crack operation Howell ran across Florida, Alabama, Mississippi, Georgia, North Carolina, and South Carolina, the people killed in the process of keeping the operation functioning.  Here, he ended the life of a state trooper, Jimmy Fulford, when a pipe bomb exploded.  That meant he faced a federal conspiracy trial for drugs, and a state murder trial.  That’s a lot to face.

His lawyer at trial was Frank Sheffield. The New York Times explained his situation:

But before Mr. Howell faced state murder charges for killing the trooper, he was a defendant in a federal trial for drug trafficking in an unrelated case. His lawyer in the federal trial, Frank Sheffield, now a state court judge, withdrew from the case after his secretary, who was also his wife, said he received a death threat by telephone. She said an anonymous caller asked if he could leave Mr. Sheffield a message: “If Paul Howell goes down, Mr. Sheffield is going down also.”

Mr. Howell was convicted on the drug charges and sentenced to life in prison.

Mr. Sheffield decided to represent Mr. Howell in the murder case, despite a request by prosecutors that he be removed from it. A state judge allowed Mr. Sheffield to continue to represent Mr. Howell.

In her concurring opinion, Judge Barkett says the Sheffield death threat was fabricated.  I assume she knows what she’s talking about, and the police later concluded that no threatening phone call happened, but regardless, Sheffield should have been removed from the case for the conflict it created either way.  Whether it was machismo or dedication or just bad judgment on Sheffield’s part, his remaining on the case was wrong. The court’s allowing him to remain on the case was error.  And yet he remained.

This is all something of a curiosity, as Frank Sheffield was appointed to defend Howell.  As Howell was a big league crack dealer with some big league cases against him, one would think he would have retained an attorney of his own choosing. After all, people sell drugs for money, not because they’re great humanitarians, and hiring a lawyer to defend them when faced with major cases seems like a good time to spend some of that money.  For drug dealers, it’s a cost of doing business.

Yet Howell had appointed counsel in Sheffield.  And Sheffield, despite whatever issues he had with Howell, wanted to stay on the case badly enough to fight for it after his claim of having his life threatened should he lose. It’s not like Sheffield was being paid a fortune to remain as Howell’s lawyer, and it was obvious that he would get slammed afterward for ineffective assistance if Howell lost. And the chance of Howell not losing was mighty slim.  It’s pretty crazy stuff.

So Howell lost and ended up highly dissatisfied with Sheffield’s representation. He complained of every choice Sheffield made, the color of his tie and the way he chewed his food.

After Howell was convicted of the Fulford murder, he was appointed post-conviction counsel, Danielle Jorden, who, apparently, just needed more time before getting to Howell’s state murder conviction.  She was granted an extension, but didn’t realize that the state extension didn’t extend the time for a federal habeas. She should have known, but didn’t. A man’s life depended on her knowing, and she was assigned the case anyway.

Judge Barkett wrote:

However, for the reasons articulated in my concurring opinion in Hutchinson v. Florida, 677 F.3d 1097 (11th Cir. 2012) (Barkett, J., concurring), I continue to believe that it is unjust and inequitable to require death row inmates to suffer the consequences of their attorneys’ negligence. Moreover, this is another case where a state’s wholly inadequate system for appointing or funding habeas counsel conspires with a thicket of complex state and federal habeas procedural rules to deny habeas petitioners the opportunity to have their substantive constitutional claims heard by a federal court. What results is a habeas system wherein unqualified and incompetent attorneys regularly fail to ably navigate the procedural waters established by state and federal statutes. This system, which consistently leads to death row inmates being denied an opportunity to present non-frivolous habeas claims, is, in my view, antithetical to the promise of habeas corpus enshrined in the Constitution.

Not feeling terribly sad for Paul Howell?  Bear in mind that this scenario developed from a conflict with Sheffield that should have ended the lawyer’s involvement no matter what, and renders every tactical choice thereafter suspect. Maybe, just maybe, Howell wasn’t as bad a dude as he now appears. And even if he was, the Constitution protects bad dudes as well as not so bad ones.

But still not crying for Howell?  Then consider this:

An additional 30 Florida inmates on death row have also missed federal habeas petition filing deadlines and could face similar situations when their execution dates arrive.

So if you don’t find your head shaking because Paul Howell may be the first death row inmate to be denied all federal habeas review because his lawyers dropped the ball, what of the others?  Does it sit well that appointed lawyers screw up and people get executed, but get no habeas review because filing deadlines were missed? Because lawyers screwed up?  Lawyers who weren’t chosen, but were assigned to represent them?

At least Judge Barkett acknowledges that this is crazy, though her words aren’t quite as good as allowing Howell habeas review before executing him, or even dissenting from a ruling that defies historic fundamental due process.

Then again, as Judge Adelbeto Jordan writes in concurrence:

Because Mr. Howell asserts that he would be the first person in Florida to be executed without having his federal habeas petition reviewed on the merits, I write separately. In my view, Mr. Howell would not have been entitled to relief even if the three claims raised in his petition received full federal habeas review.

No harm, no foul, even though everything about this case was a disaster. A real head shaker.