At 1 p.m. today, the Court will hear argument in Harbison v. Bell (07-8521), involving the right of prisoners to have federally funded counsel during state clemency proceedings. Dana Hasen of the Knoxville, Tenn., defender’s office will argue for the petitioner, and William Jay of the Solicitor General’s office will argue as amicus curiae in support of the judgment below.

In Harbison v. Bell, the Court will consider two questions:  (1) whether 18 U.S.C. § 3599 permits federally funded habeas counsel to represent a condemned inmate in state clemency proceedings; and (2) whether a district court’s denial of a request for federally funded clemency counsel may be appealed even without a certificate of appealability (COA).


18 U.S.C. § 3599 provides indigent capital defendants with counsel in post conviction proceedings and insures that “unless replaced by a similarly qualified counsel upon the attorney or defendant’s own motion…each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings.” The statute was originally enacted as part of the Anti-Drug Abuse Act of 1988, which made drug-related homicides a federal capital offense and specified sentencing procedures.  Congress also included an appropriation for indigent criminal defense and authorized federal courts to appoint counsel for unrepresented defendants in death-penalty-related proceedings. The Terrorist Death Penalty Enhancement Act of 2005, part of the PATRIOT Improvement and Reauthorization Act, recodified this provision without change in Section 3599.

Harbison’s execution comes to the Court after more than twenty years of seeking reprieve from the death penalty in both state and federal appeals. Harbison, an African-American man with no criminal history prior to this incident, has been on death row since 1985, when he was convicted of first-degree murder, second-degree burglary, and grand larceny for the 1983 murder of Edith Russell, a sixty-two-year-old white woman.  Police located property from Russell’s apartment in the residence of Harbison’s girlfriend, and they found fragments – containing traces of blood – in Harbison’s car that were consistent with a marble vase missing from Russell’s apartment.

In a taped statement made while in custody, Harbison confessed to killing Russell when she returned home as the burglary was in progress. Believing that she had a gun, Harbison claimed to have struck her on the head “at the most” two times with the marble vase. But during his trial in Tennessee state court, Harbison testified that police coerced his confession by threatening to arrest his girlfriend and take her children away, and that the tape had in any event been altered. He testified that he had not killed Russell or even been at the scene of the murder.

Harbison was convicted and sentenced to death; the only defense witness in the penalty phase was his mother, who offered just forty-seven lines of testimony.

Harbison’s direct appeals were unsuccessful, as were his efforts to obtain state post-conviction relief. Harbison then moved to federal district court, which – at his request – stayed his execution and appointed the Federal  Defender Services of Eastern Tennessee to represent him in federal habeas proceedings.  Harbison’s lawyers then obtained police records from the initial investigation that revealed both new evidence about other suspects in the case and that Harbison’s appellate lawyer had had a conflict of interest by representing another suspect.

In 1997, Harbison filed a federal habeas petition, which the district court denied in 2001.  The district court granted a certificate of appealability (COA) on three of Harbison’s claims, but the Sixth Circuit affirmed the district court’s denial in 2005.

The Tennessee Supreme Court scheduled an execution date for October 2006 and appointed a state-funded post-conviction defender. The state court then pushed back the execution date to February 2007 in response to the defense counsel’s motion to withdraw, which indicated that the post-conviction defender lacked the time and resources to prepare a case for clemency in such a short time; the court later granted the defender’s motion and held separately, in State v.  Johnson, that there is “no right to court-appointed counsel in executive clemency proceedings.”

In December 2006, Harbison asked the district court to allow Federal Defender Services, his original federal habeas counsel, to represent him in state clemency proceedings.  In his view, such representation was authorized not only by 18 U.S.C. 3599, but also by 18 U.S.C. 3006, which provides court-appointed counsel for a state prisoner seeking federal habeas corpus relief. Relying on the Sixth Circuit’s prior ruling in House v. Bell, in which the court of appeals had held that § 3599(e) “does not authorize federal compensation for legal representation in state matters,” the district court denied Harbison’s request, as well as his request for a COA on the clemency counsel question.

Harbison appealed to the Sixth Circuit, challenging – inter alia – the lower court’s denial of clemency counsel. While acknowledging that it was not clear whether the appeal of a final order denying clemency counsel required a COA, as well as that the Fifth Circuit would not require a COA in such a scenario, the court of appeals ultimately concluded that, based on its decision in House, it would deny a certificate on this issue even if one were required.

Petition for Certiorari

In his petition, Harbison begins by outlining in some detail what he describes as a strong case for clemency, including the horrific child abuse that he and his siblings suffered at his parents’ hands.   However, none of this evidence was presented during the jury trial; it was also left out of state post-conviction hearings because his counsel’s request for funding and expert services was denied. And during Harbison’s federal habeas proceedings, the district court could not consider new evidence that had not been presented to the state court.   Thus, Harbison contends, executive clemency is the only channel in which the full story might be heard. But without appropriate counsel, this is impossible, the petitioner claims.

The petition argues that the Sixth Circuit’s denial of his motion to continue the Federal  Defender Services of Eastern Tennessee’s representation at state clemency proceedings conflicts with 18 U.S.C. § 3599, which is unambiguous.  Moreover, Harbison contends, there is a three-to-two split among the circuits on the question whether federal habeas counsel may be used in state proceedings:  the Fifth and Eleventh Circuits agree with the Sixth Circuit that federal habeas counsel may not be used in state proceedings, while the Eighth and Tenth Circuits have deemed such use permissible.

Harbison further argues that certiorari should be granted to resolve the question whether a COA is required to appeal a decision denying clemency counsel.  In his view, 18 U.S.C. § 3599 mandates the appointment of counsel in capital cases and the continuance of that counsel through all proceedings; making the denial of counsel unappealable would strip the statute of all legal or practical power in the appeals courts.  Three courts of appeals – the Fifth, Tenth, and Eleventh Circuits – have agreed with this interpretation; by contrast, the Third and Sixth Circuits hold that a COA is necessary for such an appeal.

Opposing certiorari, the State argues that the Sixth Circuit did not err in denying the motion for the expansion of the appointment to include representation at the clemency stage.  The State reasons that the statute itself was adequate for the Federal Defense Services of Eastern Tennessee to continue representing Harbison.  It explains that FDSET should have undertaken its representation of Harbison and then sought compensation later; if compensation were denied, counsel could then appeal.

In any event, the State contends, petitioner’s case is not an appropriate vehicle to resolve questions regarding state clemency proceedings because Harbison no longer has a scheduled execution date scheduled and has not filed any clemency application. The questions presented by Harbison’s petition are thus merely abstract propositions and cannot concretely affect his case.

The Court asked the Solicitor General to file a brief expressing the views of the United States. In his brief, the SG argued that Harbison did not need a COA because his appeal is not a part of a habeas corpus proceeding as defined by the statute; a request for clemency counsel does not necessarily implicate federal legal questions or the denial of a constitutional right. Secondly, the SG wrote, Harbison’s argument for federally funded counsel is unsupported by the text, structure, and legislative history of Section 3599, and would create “needless friction” between federal habeas corpus and state clemency proceedings. The Court granted review on June 23, 2008


In his brief on the merits, Harbison argues that he did not need a COA to appeal the decisions to deny counsel. Under 28 U.S.C. § 2253(c)(1)(A), a COA is required only in an appeal of “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.”  Here, the order that Harbison sought to appeal was the denial of clemency counsel, a claim collateral to – but distinct from – the claim of unlawful detention and thus appealable as of right.

Harbison reiterates that the text of Section 3599 unambiguously includes state clemency proceedings as part of the responsibilities of appointed counsel. Under Section 3599(a)(2), counsel must be appointed to a capital defendant after a judgment has been issued. Counsel is to represent her defendant in all Section 2554 proceedings, “all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures.”  Section 3599(e) further provides that the attorney “shall also represent the defendant in such…proceedings for executive or other clemency as may be available to the defendant.”

In Harbison’s view, it would be irrational to interpret Section 3599 to exclude state clemency proceedings. Only state prisoners can seek relief under Section 2554, and counsel appointed to defend state capital defendants are required to continue representation through such clemency proceedings “as may be available to the defendant.” Interpreting Section 3599(e) to guarantee representation only in federal clemency proceedings would leave appointed counsel in federal habeas proceedings without a job to do, as state prisoners may only seek state clemency.

Further, Harbison claims, Congress’s use of the phrase “executive or other” clemency impliedly includes the state clemency process. Only the President can grant federal clemency, so the reference to “other” forms of clemency must have been intended to “assure that all of the several forms of clemency utilized by different jurisdictions would be encompassed within the statute.”

But the Solicitor General’s amicus brief notes that the amendments to the 1988 bill which provided for funding for “executive or other” clemency proceedings were added when the bill focused exclusively on federal defendants; state post-conviction litigants were added as a class in the final hours before the bill’s passage. The SG argues that Section 3599(e) provides counsel only for the federal proceedings “available” to defendants; therefore state prisoners, like those in Tennessee for whom federal clemency is not available, cannot receive federal funding for state clemency proceedings.

In its brief on the merits, the State declines to weigh in on whether federal funding is available for state clemency counsel.  Moreover, it agrees with Harbison that he was not required to obtain a COA to appeal the order denying clemency counsel.

Posted in Harbison v. Bell, Everything Else