Harbison v. Bell


1. Does a defendant who is appointed a federally funded lawyer for a habeas corpus claim also have a right to use the federally funded lawyer for representation in state clemency hearings?

2. Must a defendant wait until the final judgment of a state court and obtain a certificate of appealability to appeal an order denying assistance of federally funded counsel for a clemency hearing?

Oral argument: 
January 12, 2009

The Terrorist Death Penalty Enhancement Act of 2005, codified at 18 U.S.C. § 3599, provides indigent defendants in death penalty cases the assistance of federally funded lawyers. Edward Jerome Harbison was convicted of first degree murder by a Tennessee jury and sentenced to death. Harbison requested the retention of his federally provided lawyer for his state clemency proceedings. This request was denied, as the United States Court of Appeals for the Sixth Circuit found that § 3599 does not apply to strictly state proceedings. Harbison appeals this ruling, arguing that the language of § 3599 indicates it applies to all death penalty proceedings, including state clemency proceedings. Although the respondent, Warden Ricky Bell, takes no position on this issue, amicus United States argues that Congress intended § 3599 to apply exclusively to federal proceedings, and that the legislative history supports this interpretation. With its decision in this case, the Supreme Court may resolve a split of opinion among the federal circuit courts regarding the scope of § 3599.

Questions as Framed for the Court by the Parties 

Every jurisdiction that authorizes the death penalty provides for clemency, which is of vital importance in assuring that the death penalty is carried out justly. But, in this case the District Court held Mr. Harbison's federally-funded lawyers could not present, on his behalf, a clemency request to Tennessee's governor. The denial of clemency counsel contravenes basic principles of justice. As Chief Justice Rehnquist noted in Herrera v. Collins.

Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted. Indeed, the clemency power exists because "the administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt." Thus, executive clemency is the "fail safe' in our criminal justice system." A system which includes capital punishment but does not provide a meaningful opportunity for executive clemency is "totally alien to our notions of criminal justice."

Yet, the lower courts arbitrarily denied Mr. Harbison's federally-funded habeas counsel permission to represent him in state clemency proceedings after the State had denied him counsel for that purpose. The District Court and the Court of Appeals for the Sixth Circuit not only defied Congress' explicit directions to provide clemency counsel for the condemned, but denied Mr. Harbison a meaningful opportunity to present compelling facts mitigating his guilt and the punishment of death to the only person presently able to consider them, the Governor of the State of Tennessee.

Equally troubling, the Sixth Circuit barred Harbison from appealing the denial of clemency counsel by refusing to grant a certificate of appealability on the issue. In order to harmonize the law of the circuits and to decide an important issue regarding the appeals court's jurisdiction, this Court should resolve the following questions:

1. Does 18 U.S.C. §3599(a)(2) and (e) (recodifying verbatim former 21 U.S.C.§848(q) (4)(B)and (q) (8)), permit federally-funded habeas counsel to represent a condemned inmate in state clemency proceedings when the state has denied state-funded counsel for that purpose?

2. Is a certificate of appealability required to appeal an order denying a request for federally-funded counsel under 18 U.S.C. §3599(a)(2) and (e)?


In 1983, a Tennessee jury convicted Petitioner Edward Jerome Harbison of first-degree murder, second-degree burglary, and grand larceny, and sentenced him to death. Harbison appealed, but the Tennessee Supreme Court confirmed his conviction and sentence. Although Harbison unsuccessfully sought state post-conviction relief, he successfully filed in February 1997 a motion for appointment of a lawyer and a motion for a stay of execution in the United States District Court for the Eastern District of Tennessee. Pursuant to the Terrorist Death Penalty Enhancement Act of 2005, codified at 18 U.S.C. § 3599, Harbison was appointed a lawyer from Federal Defender Services of Eastern Tennessee, Inc. who prepared and filed a federal habeas corpus petition on Harbison's behalf. Harbison's petition was filed in 1997; the district court denied the petition in 2001, and the United States Court of Appeals for the Sixth Circuit affirmed the denial in 2006. Harbison, through his federally-appointed lawyer, filed several more petitions and requests for relief in state and federal court between 2001 and 2006, all of which were denied.

Prior to the Tennessee Supreme Court scheduling his execution, Harbison requested that the court appoint a lawyer to represent him in clemency proceedings before the Tennessee Board of Probation and Parole and the Governor. The court ultimately scheduled Harbison's execution for February 22, 2007, and appointed a lawyer from the State's Post-Conviction Defender Office to represent him in clemency proceedings. However, the Tennessee Supreme Court subsequently ruled in State v. Johnson "that ‘no statute, rule of court, or constitutional provision' authorized the court to appoint clemency counsel;" therefore, the court's appointment order for Harbison "did not extend the appointment of counsel to clemency proceedings."

On December 13, 2006, Federal Defender Services filed a motion requesting that the district court extend the scope of representation for Harbison's previously appointed federal post-conviction lawyer to include representation in upcoming state clemency proceedings. The district court, however, denied this motion, reasoning that House v. Bell, "which had held that Section 3599 did not authorize federally appointed counsel to represent death-row inmates in state-court post-conviction proceedings-also precluded the appointment of counsel for state clemency proceedings." ( Harbison appealed, and "[t]he court of appeals directed him to file an application for a certificate of appealability ("COA") . . . which he did" and which the district court subsequently denied.

The Sixth Circuit denied a second habeas petition from Harbison, and also denied Harbison a COA. Harbison also appealed the "denial of his request to authorize the Federal Public Defender's Services to represent him in state clemency proceedings" under 18 U.S.C. § 3599. The Sixth Circuit was unclear about whether Harbison was required to file a COA in order to appeal this issue, but nonetheless found that under House v. Bell, § 3599(e) "does not authorize federal compensation for legal representation in state matters" and denied a COA on that basis. The United States Supreme Court granted certiorari to review the denial of both Harbison's COA and Harbison's request to retain his federally appointed lawyer for state clemency proceedings after the state had denied him a state-funded lawyer for those proceedings.



("§ 3599"), "in 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 unable to obtain adequate representation . . . or other reasonably necessary services 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 representation from a federally appointed attorney." . Specifically, this statute provides federally funded lawyers for indigent defendants who face a death sentence and wish to appeal their convictions through claims under (hereafter "§ 2254").

In October 2006, the Tennessee Supreme Court held that no "statute, rule of court, or constitutional provision" authorized the appointment of state funded lawyers for indigent defendants in state clemency proceedings. The State therefore removed from the case the lawyer who had been appointed to represent Petitioner Edward J. Harbison in a clemency hearing prior to his execution for a state murder conviction, while Harbison's execution remained scheduled for February 2007. The federally funded lawyer who had been appointed under § 3599 to represent Harbison in two previous unsuccessful federal habeas corpus petitions appealed to the district court, seeking to extend her appointment so she could represent Harbison in the state clemency proceeding. The district court denied the request, and on appeal the United States Court of Appeals for the Sixth Circuit directed Harbison to file for a certificate of appealability ("COA") from the district court. A COA is generally required as a jurisdictional prerequisite to an appeal in a habeas case under However, the Sixth Circuit indicated that it was unclear whether a COA was required for an appeal from a final order denying a clemency proceeding. Determining that § 3599 did not authorize federal compensation for legal representation in state proceedings, the court denied both the motion for the COA and the request for legal representation in state clemency proceedings.

Threshold Question: Certificate of Appealability

A threshold question in this case is whether the Sixth Circuit properly exercised appellate jurisdiction without obtaining a COA. Harbison, Bell, and the United States writing as an amicus supporting the Sixth Circuit's judgment all agree that a COA is not required to appeal from an order denying legal representation in a clemency hearing because 28 U.S.C. § 2253(c)applies only to habeas corpus proceedings.

Interpretation of Statutory Text

Harbison claims the language of § 3599 plainly shows that federally funded lawyers appointed to represent defendants in federal habeas corpus claims are also available as counsel for state clemency proceedings. Harbison argues that subsection (e) of § 3599 plainly states that each appointed attorney "shall represent the defendant throughout every subsequent stage of available judicial proceedings . . . and shall also represent the defendant . . . for executive or other clemency as may be available." Harbison contends that since federal habeas is the only federal remedy available to a state defendant, § 3599's extension to any "other clemency proceeding as may be available" demonstrates that counsel's assistance is intended to apply to state proceedings as well. Harbison argues "there is no other logical way to read the statute," as state defendants are the individuals who petition for federal habeas corpus under § 2254, and rights under § 3599 are not triggered until a claim has been filed under § 2254. In addition,Harbison argues that § 3599's reference to "proceedings for executive or other clemency" confirms the legislative intent for applicability to state proceedings, because no one but the President has the power to grant pardons or clemency under federal law, and the statute must thus refer to the other executives and procedures available at the state level.

However, the United States-which argues in support of the Sixth Circuit's decision below because Respondent Warden Ricky Bell does not address the main issue in this case-counters that the text and structure of § 3599 direct focus to exclusively federal proceedings. According to the United States, § 3599 is available to both state and federal indigent defendants, and the failure of the statute to parcel the list of services counsel may provide into paragraphs corresponding to either federal or state defendants does not indicate that state defendants are entitled to every service listed in § 3599. The United States argues that § 3599(e) repeatedly stresses that appointed counsel are to perform only those services "available" to the particular defendant, while retaining an exclusively federal focus throughout the statute. One example of such "available" services includes setting the requirements of the appointed counsel, where the statute makes no mention of state bar admissibility and indicates only that appointed counsel be licensed to practice in a federal court. The United States also argues that § 3599's reference to "executive or other clemency" accounts only for times when persons other than the executive might review clemency applications. In addition, the United States contends the federal focus of § 3599 becomes determinative when it is read in the context of § 2254, as habeas claims are intended to be presented only after they have been exhausted at the state level. Therefore, the United States maintains that it would be incongruous for an established right of counsel for a cause of action which only arises after the conclusion of state proceedings to encompass funding for counsel in state proceedings.

Legislative History

The United States also contends that the legislative history of § 3599 clearly indicates that its provisions were not meant to apply to state proceedings because the statute was only amended to include state habeas petitioners a few hours before the bill passed through both Houses of Congress. Subsection (e) of § 3599 was drafted to apply to federal defendants' direct review. The United States argues that when Congress later extended eligibility for federally appointed counsel for post conviction litigants under § 2254, it was not making a conscious effort to expand the federal role in the administration of the death penalty in the States.The United States maintains that this is proved by the fact that Congress postponed making major revisions in federal habeas review of state convictions until receipt of a pending report on the subject by retired Justice Powell.
Harbison counters that no method of statutory interpretation has ever made interpretation of legislative history a prerequisite for giving effect to unambiguous statutory language. Harbison argues there is no reason to give legislation less effect simply because it was passed quickly, and the fact that Congress reaffirmed § 3599 in 2006 in exactly the same language in which it was originally passed in 1988 eviscerates whatever merit could be found in the argument that the language is intended to mean anything other than what it implies on its face.

However, the United States claims its theory of congressional intent is further bolstered by the fact that the Congress made no substantive changes to the statute when it was re-enacted in 2006 because by 2006, three circuit courts of appeals had held that § 3599 applied exclusively to federal proceedings. . The United States identifies only one case, Hill v. Lockhart, which suggested that § 3599 extended to both state and federal proceedings, and explained that the decision turned on language in the statute that required petitioners receive "reasonably necessary" services from counsel. However, Congress removed the "reasonably necessary" language from the statute in 1996, and the United States contends that it is unclear how the court would have decided Hill in the absence of that language.

In contrast, Harbison maintains there was no settled judicial interpretation for Congress to ratify in 2006, and cites several additional cases from federal district courts holding that the unequivocal language of § 3599 extended the right to federally appointed counsel to state proceedings. Harbison rejects the view that removal of the "reasonably necessary" language alters the significance of Hill. Harbison argues that the United States Court of Appeals for the Eighth Circuit largely based its decision in that case on analysis of language in § 3599(e), rather than the significance of the deleted "reasonably necessary" terminology. In addition, Harbison points out that the Tenth Circuit Court of Appeals took a similar interpretation in Hain v. Mullin, likewise concluding that there was "no other logical way to read the statute" but to determine that Congress intended to attorneys appointed during § 2254 to represent defendants in state clemency proceedings as well.


The Terrorist Death Penalty Enhancement Act of 2005, codified at 18 U.S.C. § 3599, provides indigent defendants with federally funded lawyers for capital cases, including post-conviction proceedings. Although some circuits have held differently, the United States Court of Appeals for the Sixth Circuit has ruled that § 3599 does not provide capital defendants with federally funded lawyers for exclusively state procedures, such as state clemency proceedings.

Petitioner Edward Jerome Harbison argues that § 3599's reference to "proceedings for executive or other clemency" indicates that this statute provides federally funded lawyers to defendants for state proceedings, because only the President can grant clemency under federal law, and thus "other clemency" must refer to state procedures. Respondent Warden Ricky Bell takes no position on this issue. Amicus United States counters that the statute is exclusively federal in its scope and does not apply to state proceedings, as Congress meant for it to apply only after all state remedies have been exhausted. However, all parties agree that a certificate of appealability ("COA") is not required to appeal from an order denying legal representation in a clemency hearing.

Amicus Constitution Project, supporting Harbison, emphasizes the significant role clemency plays in the capital defense process. The Constitution Project argues that clemency satisfies two "critical functions." Clemency serves as a "last resort for correcting error in the process" by including evidence that may have not been presented in court. Clemency also allows executives to evaluate the fairness of the defendant's capital sentence and "the desirability of exercising mercy." A group of former and current State Governors ("Governors"), as amici supporting Harbison, also view the clemency process as a "fail safe," explaining that "Governors engage in a fact-specific inquiry into the circumstances of each case" to determine if the defendant "has the degree of culpability that warrants death."

The functions of clemency in the capital process highlight the critical role lawyers play in clemency proceedings. Effective capital defense "requires mastery of . . . complex legal doctrine and . . . time-consuming factual investigation," and characteristics of many capital defendants poor suit them to present their own clemency cases. Fewer than half of capital defendants have finished high school, and studies have shown that "roughly 30 percent . . . [are] considered to have borderline mental retardation." The Governors also note that "without counsel, there is a serious risk that Governors . . . will not obtain the information they need to make fully informed clemency decisions."

Amicus United States, arguing in support of affirming the decision below denying federally funded lawyers for state clemency proceedings, claims that "the primary legal forums for developing and vindicating" constitutional claims, such as claims of "mental illness . . . or withholding of exculpatory evidence," are "state courts and federal habeas proceedings, not state clemency." The United States contends that capital defendants already have access to lawyers in state courts and federal habeas proceedings. Furthermore, the United States notes that "[v]irtually every State offers post-conviction counsel to indigent capital defendants."

The United States does not argue that a lawyer's assistance does not improve the persuasiveness of a clemency petition. However, the United States maintains that Congress did not intend § 3599 to grant federal funding for purely State proceedings. The United States argues that Congress' purpose was "to protect federal constitutional rights" including the "federal interest in indigent defense (over and above that required by the Sixth Amendment)." Further, the United States claims that Congress likely meant to avoid the "unique federalism concerns" that would result from using "federal tax dollars to represent defendants" in purely state proceedings.

Currently, federal circuit courts have split over the proper interpretation of § 3599. The Fifth, Sixth, and Eleventh Circuits have interpreted the statute as only providing assistance to defendants seeking federal clemency from the President. The Eighth and Tenth Circuits, however, have interpreted § 3599 to also provide federal assistance to defendants seeking clemency at the state level. In deciding this case, the Supreme Court may resolve this circuit split by determining whether the Terrorist Death Penalty Enhancement Act of 2005 makes federal assistance available to capital defendants in state clemency proceedings, or if its scope is restricted to federal clemency.



The Supreme Court in this case may resolve a circuit split regarding whether or not Congress intended the Terrorist Death Penalty Enhancement Act of 2005, codified at 18 U.S.C. § 3599, to apply in strictly federal proceedings or in any part of the death penalty process, including state clemency proceedings. Clemency represents a crucial stage in the death penalty process, both to the defendants and to the executives charged with making the decision of whether the death sentence is appropriate. The Court may consider the importance of adequate representation for death penalty defendants, who as a group may be deficient in their ability to present an effective clemency presentation on their own and read the statute to apply to state proceedings. However, the Court might also consider that most states already do provide representation for state death penalty proceedings and avoid the potential federalism concerns by determining that § 3599 only applies to federal proceedings.

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