On April 1, 2009, the Supreme Court decided Harbison v. Bell, No. 07-8521.
In 1983, a Tennessee court sentenced Edward Harbison to death. The state courts rejected his challenges to the conviction and sentence on direct review. A federal district court then appointed counsel to represent Harbison in filing a federal habeas petition. That petition was denied, and the denial was affirmed on appeal. Harbison then turned back to the state to pursue a clemency proceeding. He asked the state court to appoint a lawyer to represent him in the clemency proceeding, but the Supreme Court of Tennessee held in the meantime that state law does not authorize the appointment of a public defender in clemency proceedings. So Harbison's federally-appointed lawyer asked the federal court to expand the authorized scope of her representation to include the state clemency proceeding. The district court denied the motion, holding that 18 U.S.C. § 3599 does not provide for court-appointed counsel in state clemency proceedings, and the U.S. Court of Appeals for the Sixth Circuit affirmed that denial.
The Supreme Court first decided that Harbison did not need a certificate of appealability under 28 U.S.C. § 2253(c)(1) to appeal the denial of his request for court-appointed counsel in his clemency proceeding. The Court held that Section 2253(c)(1) governs orders that deny habeas petitions on the merits, and that was not the sort of order from which Harbison was appealing.
On the merits, the Court held that 18 U.S.C. § 3599 authorizes federally-appointed counsel to represent a criminal defendant in state clemency proceedings. The Court relied on 18 U.S.C. § 3599(e), which provides that an attorney appointed under Section 3599 "shall represent the defendant throughout every … stage of available judicial proceedings … and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." The Court rejected the government's argument that Section 3599 applies only to federal criminal proceedings, noting that subsection (a)(2) of the statute specifically applies to state litigants, and subsection (e) applies to such litigants and does not limit itself to federal clemency proceedings. The Court also remarked that Congress's reference in Section 3599(e) to "proceedings for executive or other clemency" indicates that Congress intended to include state clemency proceedings, as federal clemency is exclusively executive, and there would be no need to refer to "other clemency" if the provision were intended to apply solely to federal clemency proceedings.
Justice Stevens delivered the majority opinion. Justices Scalia and Alito concurred in part and dissented in part.
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