State Lacked Standing to Challenge Appointment of Federal Defender in State Post-Conviction Proceedings, Holds Eleventh Circuit

In Booker v. Florida Dep’t of Corr., No. 20-14539 (11th Cir. Jan. 3, 2021), an Eleventh Circuit panel holds that whatever intrusion it might present on an ongoing state proceeding, the state lacks Article III standing to object to appointment of a federal defender to represent a death-row prisoner in a state post-conviction proceeding.

Booker was convicted in Florida state court in 1978 for first-degree murder and sentenced to death. “[I]n 2020, counsel from the Capital Habeas Unit of the Office of the Federal Public Defender (CHU) filed a motion in federal district court asking for permission to represent Booker in state court to exhaust a Brady [v. Maryland, 373 U.S. 83 (1963)] claim so that Booker could pursue the claim in a successive habeas petition in federal court. The Brady claim focused on the prosecution’s failure to dis[1]close notes that allegedly could have been used to impeach the FBI hair expert who testified at trial.”

The State objected, arguing that the “Booker had a state-law right to counsel through Florida’s Capital Collateral Regional Counsel North (CCRC-N)” and that such counsel had indeed been appointed. “Nonetheless, over the State’s objection, the district court appointed federal counsel pursuant to 18 U.S.C. § 3599 to represent Booker in state court so that he could exhaust the Brady claim.”

The Eleventh Circuit dismisses the State’s appeal of the appointment order, finding that there was no Article III standing to pursue it.

The State first argued, “citing a binding decision from the old Fifth Circuit, … that it has standing based on potential conflicts [of interest] that might arise when federal habeas counsel appears in state court as state postconviction counsel.” In the 1976 authority cited, though, the risk of conflict was actual or imminent: it involved an attorney who purported to represent both a labor union and individual union officials in a grand jury proceeding.

“In contrast, the State has not pointed to any ‘actual or imminent’ conflict of interest that exists in the context of Booker exhausting his Brady claim …. True, Booker’s current federal counsel, Linda McDermott, previously represented Booker as state counsel. But Booker is not alleging—and there is no indication that he will allege—that his counsel was ineffective at any point in the state proceedings. The State’s suggestion at oral argument that a conflict could later arise—perhaps on the basis that state postconviction counsel was ineffective for failing to raise the Brady claim earlier—is, at best, conjectural or hypothetical.”

Second, the State argued that “the Florida Attorney General is representing the Secretary in this proceeding, and that it has a stake in protecting Florida’s postconviction system from interference by CHU counsel or federal district courts.” But the panel holds that this argument was inconsistent with the State’s litigation posture in state court. “Even if CHU counsel’s appearance in state court could offend state sovereignty, that injury is not traceable to the district court’s order. When Booker’s § 3599-appointed counsel appeared in state court, the State failed to object … and the state court allowed her appearance. We are hard pressed to see how Florida can come to us complaining that the district court’s order infringed its sovereignty where it did not so much as object to CHU counsel’s appearance in state court and where the state court accepted her appearance.”

At bottom, the panel holds, the State challenged the wrong activity in the federal proceeding. Its objection was not to the appointment of the federal defender, which had no intrusion on state sovereignty, but the appearance of the lawyer in state court, which it failed to object to on a timely basis. “What we have, then, is a mismatch between the effect of the order the State is challenging and the injury it claims to be asserting. The district court’s order simply does not control which lawyers appear in state proceedings; such determinations remain the prerogative of state courts.”

Two judges, concurring specially, agreed with the standing analysis but nevertheless analyzed (in a further seven pages) why – had the panel reached the merits – they would have held that the appointment of a federal defender for Booker was an abuse of discretion under 18 U.S.C. § 3599 because he was already adequately represented by state-appointed counsel.

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