MARTEL v. CLAIR

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–1265

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MICHAEL MARTEL, WARDEN, PETITIONER v. KENNETH CLAIR

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 5, 2012]

Justice Kagan delivered the opinion of the Court.

A federal statute, §3599 of Title 18, entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings. The statute contemplates that appointed counsel may be “replaced . . . upon motion of the defendant,” §3599(e), but it does not specify the standard that district courts should use in evaluating those motions. We hold that courts should employ the same “interests of justice” standard that they apply in non-capital cases under a related statute, §3006A of Title 18. We also hold that the District Court here did not abuse its discretion in denying respondent Kenneth Clair’s motion to change counsel.

I

This case arises from the murder of Linda Rodgers in 1984. Rodgers resided at the home of Kai Henriksen and Margaret Hessling in Santa Ana, California. Clair was a squatter in a vacant house next door. About a week prior to the murder, police officers arrested Clair for burglarizing the Henriksen-Hessling home, relying on information Henriksen had provided. On the night the police released Clair from custody, Hessling returned from an evening out to find Rodgers’ dead body in the master bedroom, naked from the waist down and beaten, stabbed, and strangled. Some jewelry and household items were missing from the house. See People v. Clair, 2 Cal. 4th 629, 644–647, 828 P. 2d 705, 713–714 (1992); App. to Pet. for Cert. 23–24.

The district attorney charged Clair with Rodgers’ murder and sought the death penalty. No forensic evidence linked Clair to the crime; instead, the main evidence against Clair came from his former girlfriend, Pauline Flores. Although she later recanted her testimony, see App. 36–42, Flores stated at trial that she and Clair were walking in the neighborhood on the night of the murder and split up near the Henriksen-Hessling house. When they reunited about an hour later, Flores recounted, Clair was carrying jewelry and other items and had blood on his right hand. According to Flores, Clair explained to her that he had “just finished beating up a woman.” Clair, 2 Cal. 4th, at 647, 828 P. 2d, at 714. The prosecution then introduced a tape recording of a talk between Flores and Clair several months after the murder, which Flores had made in cooperation with the police. On that tape, Clair at one point denied committing the murder, but also made several inculpatory statements. For example, when Flores told Clair that she had seen blood on him, he replied “Ain’t on me no more” and “They can’t prove nothing.” App. to Pet. for Cert. 53 (internal quotation marks omitted). And in response to her continued probing, Clair explained “[W]hat you fail to realize, how . . . they gonna prove I was there . . . ? There ain’t no . . . fingerprints, ain’t no . . . body seen me go in there and leave out there.” Id., at 53–54 (internal quotation marks omitted). The jury convicted Clair and sentenced him to death. The California Supreme Court upheld the verdict, and this Court denied review, Clair v. California, 506 U. S. 1063 (1993) .

Clair commenced federal habeas proceedings by filing a request for appointment of counsel, which the District Court granted under §3599. Clair and his counsel filed an initial petition for habeas relief in 1994 and, after exhausting state remedies, an amended petition the following year. The petition alleged more than 40 claims, involving such matters as jury selection and composition, sufficiency of the evidence, prosecutorial misconduct, nondisclosure of exculpatory materials relating to state witnesses, and ineffectiveness of trial counsel. In the late 1990’s, two associates from the firm representing Clair took jobs at the Office of the Federal Public Defender (FPD), and the court substituted that office as counsel of record. The court held an evidentiary hearing on Clair’s habeas petition in August 2004, and the parties submitted post-hearing briefs by February 2005. The court subsequently informed the parties that it viewed the briefing “to be complete and d[id] not wish to receive any additional material” about the petition. App. 3–4.

On March 16, 2005, Clair sent a letter to the court stating that the FPD attorneys “no longer . . . ha[d] [his] best interest at hand” and that he did not want them to continue to represent him. Id., at 24; see id., at 18–25. Clair alleged that the lawyers had repeatedly dismissed his efforts to participate in his own defense. Prior to the evidentiary hearing, Clair wrote, he had become so frustrated with the attorneys that he enlisted a private detective to look into his case. But the lawyers, Clair charged, refused to cooperate with the investigator; they were seeking only to overturn his death sentence, rather than to prove his innocence. As a result, Clair felt that he and his counsel were not “on the same team.” Id., at 23.

The District Court responded by asking both parties to address Clair’s motion to substitute counsel. See id., at 18. The State noted that “[w]hat the trial court does with respect to appointing counsel is within its discretion, providing the interests of justice are served.” Id., at 29. The State further advised the court that “nothing in [Clair’s] letter require[d] a change” of counsel because the FPD lawyers had provided appropriate representation and substitution would delay the case. Ibid. Clair replied to the court’s request through his FPD attorneys on April 26, 2005. Their letter stated: “After meeting with Mr. Clair, counsel understands that Mr. Clair wants the [FPD] to continue to serve as his counsel in this case at this time.” Id., at 27. On the basis of that representation, the court determined that it would “take no further action on the matter at this time.” Id., at 33.

But the issue resurfaced just six weeks after the court’s decision. On June 16, 2005, Clair wrote a second letter to the court asking for substitution of counsel. That letter again asserted a “total break down of communication” between Clair and the FPD; according to Clair, he was “no longer able to trust anybody within that office.” Id., at 62–63. In explaining the source of the problem, Clair reiterated each of the points made in his prior complaint. And then he added one more. Clair recounted that his private investigator had recently learned that the police and dis-trict attorney’s office were in possession of fingerprints and other physical evidence from the crime scene that had never been fully tested. The FPD lawyers, Clair asserted, were doing nothing to analyze this evidence or otherwise follow up on its discovery. Clair attributed this failure, too, to the FPD’s decision to focus on his sentence, rather than on questions of guilt.

Two weeks later, the District Court denied Clair’s renewed request for substitution without further inquiry. The court stated: “It does not appear to the Court that a change of counsel is appropriate. It appears that [Clair’s] counsel is doing a proper job. No conflict of interest or inadequacy of counsel is shown.” Id., at 61. On the same day, the court denied Clair’s habeas petition in a detailed opinion. Clair v. Brown, Case No. CV 93–1133 GLT (CD Cal., June 30, 2005), App. to Pet. for Cert. 20–91.

Clair sought review of his substitution motion pro se, while the FPD filed a notice of appeal from the denial of his habeas petition. The Court of Appeals for the Ninth Circuit instructed the FPD to address whether substitution of counsel was now warranted, and in October 2005, the FPD informed the court that “the attorney-client relationship ha[d] broken down to such an extent that sub-stitution of counsel [would be] appropriate.” Attorney for Appellant’s Response to Court’s Sept. 15, 2005 Order, in No. 05–99005 (CA9), Record, Doc. 9, p. 1. The State did not comment or object, and the Court of Appeals provided Clair with a new lawyer going forward. Clair then asked the District Court to vacate the denial of his habeas petition under Federal Rule of Civil Procedure 60(b), arguing that he should be allowed to explore the significance of the new physical evidence for his case. The District Court (with a new judge assigned, because the judge previously handling the case had retired) rejected that request on the ground that the new evidence did not pertain to any of the claims presented in Clair’s habeas petition. See App. to Pet. for Cert. 9–10. Clair appealed that decision as well. 1

After consolidating Clair’s appeals, the Ninth Circuit vacated the trial court’s denial of both Clair’s request for new counsel and his habeas petition. See Clair v. Ayers, 403 Fed. Appx. 276 (2010). The Court of Appeals’ opinion focused on Clair’s substitution motion. Holding that the “interests of justice” standard should apply to that motion, the Ninth Circuit ruled that the District Court abused its discretion by failing to inquire into the complaints in Clair’s second letter. See id., at 278. The Court of Appeals then considered how to remedy that error, given that Clair had received new counsel while on appeal. It decided that “the most reasonable solution” was to “treat Clair’s current counsel as if he were the counsel who might have been appointed” in June 2005, and to allow him to make whatever submissions he would have made then, including a motion to amend Clair’s habeas petition in light of new evidence. Id., at 279.

We granted certiorari to review this judgment, 564 U. S. __ (2011), and now reverse.

II

We first consider the standard that district courts should use to adjudicate federal habeas petitioners’ motions to substitute counsel in capital cases. The question arises because the relevant statute, 18 U. S. C. §3599, contains a notable gap. Section 3599 first guarantees that indigent defendants in federal capital cases will receive the assistance of counsel, from pretrial proceedings through stay applications. See §§3599(a)(1), (a)(2), (e). It next grants a corresponding right to people like Clair who seek federal habeas relief from a state death sentence, for all post-conviction proceedings and related activities. See §§3599(a)(2), (e); McFarland v. Scott, 512 U. S. 849 –855 (1994); Harbison v. Bell, 556 U. S. 180 –185 (2009). And the statute contemplates that both sets of litigants may sometimes substitute counsel; it notes that an attorney appointed under the section may be “replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the defendant.” §3599(e). 2 But here lies the rub: The statute fails to specify how a court should decide such a motion. Section 3599 says not a word about the standard a court should apply when addressing a request for a new lawyer.

The parties offer us two alternative ways to fill this statutory hole. Clair argues, and the Ninth Circuit agreed, that district courts should decide substitution motions brought under §3599 “in the interests of justice.” That standard derives from 18 U. S. C. §3006A, which governs the appointment and substitution of counsel in federal non-capital litigation. By contrast, the State contends that district courts may replace an appointed lawyer under §3599 only when the defendant has suffered an “actual or constructive denial” of counsel. Brief for Petitioner 33. That denial occurs, the State asserts, in just three situations: when the lawyer lacks the qualifications necessary for appointment under the statute; when he has a “disabling conflict of interest”; or when he has “completely abandoned” the client. Id., at 34. On this matter, we think Clair, not the State, gets it right.

A trip back in time begins to show why. Prior to 1988, §3006A governed the appointment of counsel in all federal criminal cases and habeas litigation, regardless whether the matter involved a capital or a non-capital offense. That section provided counsel as a matter of right to most indigent criminal defendants, from pre-trial proceedings through appeal. See §§3006A(a)(1), (c) (1982 ed.). In addition, the statute authorized courts to appoint counsel for federal habeas petitioners when “the interests of justice so require[d],” §3006A(g); and under that provi-sion, courts almost always appointed counsel to represent petitioners convicted of capital offenses, see Ruthenbeck, Dueling with Death in Federal Courts, 4 ABA Criminal Justice, No. 3, pp. 2, 42 (Fall, 1989). In all cases in which a court had appointed counsel, §3006A further provided (as it continues to do) that substitution motions should be decided “in the interests of justice.” §3006A(c). So in those days, a court would have used that standard to evaluate a request like Clair’s.

In 1988, Congress enacted the legislation now known as §3599 to govern appointment of counsel in capital cases, thus displacing §3006A for persons facing execution (but retaining that section for all others). See Anti-Drug Abuse Act, 102Stat. 4393–4394, 21 U. S. C. §§848(q)(4)–(10) (1988 ed.) (recodified at 18 U. S. C. §3599 (2006 ed. and Supp. IV)). The new statute grants federal capital defendants and capital habeas petitioners enhanced rights of representation, in light of what it calls “the seriousness of the possible penalty and . . . the unique and complex nature of the litigation.” §3599(d) (2006 ed.). Habeas petitioners facing execution now receive counsel as a matter of right, not an exercise of the court’s discretion. See §3599(a)(2). And the statute aims in multiple ways to improve the quality of representation afforded to capital petitioners and defendants alike. Section 3599 requires lawyers in capital cases to have more legal experience than §3006A demands. Compare §§3599(b)–(d) with §3006A(b). Similarly, §3599 authorizes higher rates of compensation, in part to attract better counsel. Compare §3599(g)(1) with §3006A(d) (2006 ed. and Supp. IV). And §3599 provides more money for investigative and expert services. Compare §§3599(f) (2006 ed.), (g)(2) (2006 ed., Supp. IV), with §3006A(e) (2006 ed. and Supp. IV). As we have previously noted, those measures “reflec[t] a determination that quality legal representation is necessary” in all capital proceedings to foster “fundamental fairness in the imposition of the death penalty.” McFarland, 512 U. S., at 855, 859.

That understanding of §3599’s terms and origins goes far toward resolving the parties’ dispute over what standard should apply. We know that before §3599’s passage, courts used an “interests of justice” standard to decide substitution motions in all cases—and that today, they continue to do so in all non-capital proceedings. We know, too, that in spinning off §3599, Congress enacted a set of reforms to improve the quality of lawyering in capital litigation. With all those measures pointing in one direction, we cannot conclude that Congress silently prescribed a substitution standard that would head the opposite way. Adopting a more stringent test than §3006A’s would deprive capital defendants of a tool they formerly had, and defendants facing lesser penalties still have, to handle serious representational problems. That result clashes with everything else §3599 does. By contrast, utilizing §3006A’s standard comports with the myriad ways that §3599 seeks to promote effective representation for persons threatened with capital punishment.

The dearth of support for the State’s alternative standard reinforces the case for borrowing from §3006A. Recall that the State thinks substitution proper “only when . . . counsel is completely denied”—which, the State says, occurs when counsel lacks the requisite experience; “actively represents conflicting interests”; or has “total[ly] desert[ed]” the client. Brief for Petitioner 15, 35, 38. As the State acknowledges, this test comes from . . . well, from nowhere. The State conceded during argument that Congress has not considered (much less adopted) the standard in any context; neither has a federal court used it in any case. See Tr. of Oral Arg. 16. Indeed, the standard is new to the State’s own attorneys. As noted earlier, when Clair first requested a change of counsel, the State responded that substitution is a “matter . . . of trial court discretion,” based on “the interests of justice.” App. 29; see supra, at 3–4. Only later did the State devise its present proposal. Inventiveness is often an admirable quality, but here we think the State overdoes it. To be sure, we must infer a substitution standard for §3599; in that sense, we are writing on a blank slate. But in undertaking that task, we prefer to copy something familiar than concoct something novel. That enables courts to rely on experience and precedent, with a standard already known to work effectively.

Still worse, the State’s proposed test guts §3599’s pro-vision for substitution motions. See §3599(e) (2006 ed.) (appointed counsel may be “replaced . . . upon motion of the defendant”). According to the State, a court may not change counsel under §3599 even if the attorney-client relationship has broken down, so long as the lawyer has the required qualifications and is “act[ing] as an advocate.” Brief for Petitioner 35. And that is so, continues the State, even when substitution will not cause delay or other prejudice—because again, the defendant retains a functioning lawyer. See id., at 34. That approach, as already noted, undermines Congress’s efforts in §3599 to enhance representation in capital cases. See supra, at 8–9. And beyond that, it renders §3599’s substitution provision superfluous. Even in the absence of that provision, a court would have to ensure that the defendant’s statutory right to counsel was satisfied throughout the litigation; for example, the court would have to appoint new counsel if the first lawyer developed a conflict with or abandoned the client. So by confining substitution to cases in which the defendant has no counsel at all, the State’s proposal effectively deletes §3599’s substitution clause.

The State counters that only its approach comports with “this Court’s long-established jurisprudence that habeas prisoners, including capital prisoners,” have no right to counsel under the Sixth Amendment. Brief for Petitioner 18; see Murray v. Giarratano, 492 U. S. 1, 10, 12 (1989) (plurality opinion); id., at 14–15 (Kennedy, J., concurring in judgment); cf. Coleman v. Thompson, 501 U. S. 722, 755 (1991) (reserving question of whether the Sixth Amendment guarantees counsel when a habeas proceeding provides the first opportunity to raise a claim). But we do not understand the State’s basis for linking use of the “interests of justice” standard to cases in which an individual has a Sixth Amendment right. A statute need not draw the same lines as the Constitution, and neither §3006A nor §3599 does so in addressing the substitution of counsel. Section 3006A applies the “interests of justice” standard to substitution motions even when the Sixth Amendment does not require representation; that is presumptively so, for example, when a court provides counsel to a non-capital habeas petitioner. See §§3006A(a)(2)(B), (c). And whatever standard we adopt for §3599 will likewise apply both to litigants who have and to litigants who lack a Sixth Amendment right, because the section offers counsel on the same terms to capital defendants and habeas petitioners. In providing statutory rights to counsel, Congress declined to track the Sixth Amendment; accordingly, the scope of that Amendment cannot answer the statutory question presented here.

The State’s stronger argument relates to delay in capital proceedings. Under the “interests of justice” standard, the State contends, substitution motions will become a mechanism to defer enforcement of a death sentence, contrary to historic restrictions on “abuse of the writ” and to the goals of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Brief for Petitioner 19–22. But this argument, like the last, forgets that §3599 reaches not just habeas petitioners but also criminal defendants, who have not been convicted or sentenced and therefore have no incentive to delay. Moreover, the State’s claim misjudges the capacity of the “interests of justice” standard to deal with such issues. Protecting against abusive delay is an interest of justice. Because that is so, courts addressing substitution motions in both capital and non-capital cases routinely consider issues of timeliness. See, e.g., Hunter v. Delo, 62 F. 3d 271, 274 (CA8 1995) (citing “the need to thwart abusive delay” in affirming the denial of a habeas petitioner’s substitution motion); United States v. White, 451 F. 2d 1225, 1226 (CA6 1971) (per curiam) (approving a District Court’s refusal to change counsel under §3006A(c) “on the morning of the trial”). Indeed, we will do so, just paragraphs from here, in this very case. See infra, at 15–16. The standard we adopt thus takes account of, rather than ignores or opposes, the State’s interest in avoiding undue delay. 3

III

The remaining question is whether the District Court abused its discretion in denying Clair’s second request for new counsel under §3599’s “interests of justice” standard. We do not think the court did so, although the court’s failure to make any inquiry into Clair’s allegations makes this decision harder than necessary.

As its name betrays, the “interests of justice” standard contemplates a peculiarly context-specific inquiry. So we doubt that any attempt to provide a general definition of the standard would prove helpful. In reviewing substitution motions, the courts of appeals have pointed to several relevant considerations. Those factors may vary a bit from circuit to circuit, but generally include: the timeliness of the motion; the adequacy of the district court’s inquiry into the defendant’s complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client’s own responsibility, if any, for that conflict). See, e.g., United States v. Prime, 431 F. 3d 1147, 1154 (CA9 2005); United States v. Doe, 272 F. 3d 116, 122–123 (CA2 2001); Hunter, 62 F. 3d, at 274; United States v. Welty, 674 F. 2d 185, 188 (CA3 1982). Because a trial court’s decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn it only for an abuse of discretion.

The District Court here received Clair’s second substitution motion on the eve of deciding his 10-year-old habeas petition. Recall that three months earlier, following an evidentiary hearing and post-hearing briefing, Clair had written the court to complain about his attorneys. In that first letter, Clair accused his lawyers of refusing to co-operate with a private detective and, more generally, of forgoing efforts to prove his innocence. After making proper inquiry, the court learned that Clair and his attorneys had worked through their dispute and Clair no longer wanted to substitute counsel. The court thus turned its attention once again to ruling on Clair’s habeas petition—only to receive another letter requesting a change in representation.

If that second letter had merely recapitulated the charges in the first, this case would be relatively simple. Even then, the court might have done well to make further inquiry of Clair and his counsel. As all Circuits agree, courts cannot properly resolve substitution motions without probing why a defendant wants a new lawyer. See, e.g., United States v. Iles, 906 F. 2d 1122, 1130 (CA6 1990) (“It is hornbook law that ‘[w]hen an indigent defendant makes a timely and good faith motion requesting that appointed counsel be discharged and new counsel appointed, the trial court clearly has a responsibility to determine the reasons for defendant’s dissatisfaction . . .’ ” (quoting 2 W. LaFave & J. Israel, Criminal Procedure §11.4, p. 36 (1984))). Moreover, an on-the-record inquiry into the defendant’s allegations “permit[s] meaningful appellate review” of a trial court’s exercise of discretion. United States v. Taylor, 487 U. S. 326 –337 (1988). But here the court had inquired, just a short time earlier, into Clair’s relationship with his lawyers. The court knew that Clair had responded to that inquiry by dropping his initial complaints. And the court had reason to think, based on 10 years of handling the case, that those charges lacked merit: Perhaps most important, the court knew that the lawyers had raised many challenges not just to Clair’s sentence, but to his conviction, including to the sufficiency of the State’s evidence. See, e.g., App. to Pet. for Cert. 27–69. Especially at this stage of the litigation, those factors would have provided ample basis to reject a simple reprise of Clair’s allegations.

What complicates this case is that in his second letter, Clair added a new and significant charge of attorney error. Beyond asserting generally that his lawyers were not trying to prove his innocence, Clair now alleged that counsel had refused to investigate particular, newly located physical evidence. That evidence, according to Clair, might have shown that the police had suppressed Brady material, that his trial counsel had been ineffective in investigating the murder, or that he had not committed the offense. See Tr. of Oral Arg. 45–46. Especially in a case lacking physical evidence, built in part on since-recanted witness testimony, those possibilities cannot be blithely dismissed. In the mine run of circumstances, Clair’s new charge would have required the court to make further inquiry before ruling on his motion for a new attorney.

But here, the timing of that motion precludes a holding that the District Court abused its discretion. The court received Clair’s second letter while putting the finishing touches on its denial of his habeas petition. (That lengthy decision issued just two weeks later.) After many years of litigation, an evidentiary hearing, and substantial post-hearing briefing, the court had instructed the parties that it would accept no further submissions. See App. 3–4; Tr. of Oral Arg. 4–5. The case was all over but the deciding; counsel, whether old or new, could do nothing more in the trial court proceedings. At that point and in that forum, Clair’s conflict with his lawyers no longer mattered.

Clair, to be sure, wanted to press his case further in the District Court. He desired a new lawyer, after examining the physical evidence, to make whatever claims followed from it. But, notably, all of those claims would have been new; as the District Court later found in ruling on Clair’s Rule 60(b) motion, the physical evidence did not relate to any of the claims Clair had previously made in his habeas petition. See App. to Pet. for Cert. 9–10. A substitute lawyer thus would have had to seek an amendment of that petition, as well as an evidentiary hearing or, more likely, a stay to allow exhaustion of remedies in state court. See 403 Fed. Appx., at 279. The District Court could properly have rejected that motion, consistent with its order precluding further submissions (effectively remitting Clair to state court to pursue the matter). See Mayle v. Felix, 545 U. S. 644, 663 (2005) . And if that is so, the court also acted within its discretion in denying Clair’s request to substitute counsel, even without the usually appropriate inquiry. The court was not required to appoint a new lawyer just so Clair could file a futile motion. We accordingly find that the Court of Appeals erred in overturning the District Court’s decision. 4

The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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1  While litigating his Rule 60(b) motion in the District Court, Clair also pursued discovery in the California state courts relating to the newly found physical evidence. On the basis of material he obtained, Clair filed another petition for state habeas relief, alleging (among other claims) actual innocence and improper suppression of exculpatory material under Brady v. Maryland, 373 U. S. 83 (1963) . The California Supreme Court summarily denied that petition. See In re Clair, No. S169188 (Aug. 24, 2011).

2  Section 3599(e) provides in full: “Unless replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of exe-cution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and pro-ceedings for executive or other clemency as may be available to the defendant.”

3  The State also makes a more specific argument based on AEDPA, see Brief for Petitioner 26–29, but we think it is not well taken. The State notes that the “interests of justice” standard enables a court, when ruling on a substitution motion, to take account of a lawyer’s effectiveness. That consideration, according to the State, conflictswith AEDPA’s injunction that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a [habeas] proceeding arising under section 2254.” 28 U. S. C. §2254(i); see §2261(e) (using similar language). But most naturally read, §2254(i) prohibits a court from granting substantive habeas relief on the basis of a lawyer’s ineffectiveness in post-conviction proceedings, not from substituting counsel on that ground. Cf. Holland v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 18) (holding that §2254(i) does not preclude equitable tolling of a statute of limitations based on attorney misconduct in habeas proceedings). Indeed, if the State were right, we would also have to find that AEDPA silently repealed §3006A’s instruction to courts to apply the “interests of justice” standard in non-capital habeas cases. We see nothing to suggest that Congress had that result in mind.

4  We note as well that the Court of Appeals ordered the wrong remedy even assuming the District Court had abused its discretion in denying Clair’s substitution motion without inquiry. The way to cure that error would have been to remand to the District Court to decide whether substitution was appropriate at the time of Clair’s letter. Unless that court determined that counsel should have been changed, the Court of Appeals had no basis for vacating the denial of Clair’s habeas petition.

Print this transcript Transcript: 

ORAL ARGUMENT OF WARD A. CAMPBELL ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-1265, Martel v. Clair.

Mr. Campbell.

Ward A. Campbell: Mr. Chief Justice, and may it please the Court:

For 12 years, Mr. Clair's Federal habeas corpus petition was litigated in the Federal district court in front of the same Federal district court judge.

His petition raised 39 challenges to his guilt and penalty, and the judge oversaw years of discovery, presided over a 2-day evidentiary hearing, and received extensive briefing.

When the case was under submission, Mr. Clair sent a letter to the judge expressing dissatisfaction with his team of attorneys from the Federal Public Defender's office, and requested that they be replaced.

The judge asked both sides' counsel for their position on Clair's complaint.

The Federal Public Defender responded that, after conferring with their client, Mr. Clair was willing to continue with them for that point.

The court then stated it would take no further action.

3 months later, just before the court was to issue its decision in the case, Clair complained again.

The court issued a written order--

Chief Justice John G. Roberts: Was there some way that Clair knew that the court was just about to issue its decision?

Ward A. Campbell: --I think, Your Honor, the only way to be sure was the fact that at some point, as I understand it, the district court judge had announced the day he would be retiring, which would be June 30th of 2005.

So, there's probably an inference there that it could be expected that the decision was going to be coming out by the end of the -- end of June 2005.

Justice Ruth Bader Ginsburg: There was a deadline set for all submissions, wasn't there?

Ward A. Campbell: There was an initial deadline set for the filing of the briefing, post-evidentiary hearing briefing, and there would be no extensions of time.

Subsequently, there was in fact another submission by Mr. Clair in May of 2005 with some additional declarations.

The court accepted those declarations, but made it clear it would accept no additional submissions in the case unless it ordered otherwise, that it would proceed with the decision.

Once upon -- anyway, in June, June 16th, 2005, Mr. Clair sent a second complaint about his counsel again, and the district court issued a written order denying that request, finding that Clair's counsel was doing a proper job and did not appear to have a conflict of interest.

The district court had an excellent factual basis for that conclusion because it had just concluded work on its extensive order denying the petition in Mr. Clair's case.

Justice Ruth Bader Ginsburg: But this petition had something new, the report that his investigator had turned up this evidence.

Ward A. Campbell: That's correct, Your Honor.

The -- what Mr. Clair's complaint indicated, there was some additional physical evidence that had not been examined or investigated before.

He indicated that the Federal Public Defender actually had met with the Orange County law enforcement about the evidence, and he was upset that there was no further action being taken by the Federal Public Defender regarding testing, seeking DNA testing or testing of that evidence.

Justice Samuel Alito: There has been some additional litigation regarding this physical evidence since this -- the time of -- of the unsuccessful substitution request, hasn't there been?

Ward A. Campbell: That's correct.

Justice Samuel Alito: Could you tell us what has happened with that?

Ward A. Campbell: I'm sorry?

Justice Samuel Alito: I'm sorry.

Could you tell us what has us what has happened with that litigation?

Ward A. Campbell: The status of that litigation: Once the -- the petition was denied, Mr. Clair filed a notice -- there was a notice of appeal filed by the Federal Public Defender.

Mr. Clair also filed a notice of appeal because of the denial of his substitution motion.

Those were merged together.

Mr. Clair was appointed new counsel.

The new counsel then filed a rule -- a rule -- a request to the district court to entertain a Rule 60(b) motion, which the district court denied.

The Ninth Circuit ordered that the district court consider the Rule 60(b) motion.

The district court heard the Rule 60(b) motion and then denied it.

$Mr. Clair then filed a protective petition, a petition for writ of habeas corpus for a successive petition, with the Ninth Circuit, and has also filed a petition for writ of habeas corpus with the California Supreme Court.

Justice Samuel Alito: That's what I was referring to.

Ward A. Campbell: Yes.

Justice Samuel Alito: And what -- what has happened there?

Was there -- was there testing of this evidence in connection with that?

Ward A. Campbell: There -- there had been -- there has been some testing of the evidence during -- during that time by the Orange County law enforcement in regards to its relationship to the crime, or its relationship to another crime that occurred at that time, which I think that information is set forth in the appendix to the opposition to the petition for certiorari.

The--

Justice Sonia Sotomayor: I'm sorry.

Can you remind me of what the outcome of that testing was?

Ward A. Campbell: --The -- the outcome of -- of the testing is that, to the extent that the testing was done to see if the -- there was any DNA matching between the other murder that had occurred a couple days before and the murder of Ms. Rodgers -- let's see if I can say this succinctly.

The -- there was -- there was no matching of Mr. Clair's DNA with anything from the murder scene of the Rodgers murder, and there was no matching of any DNA that was found for the perpetrator of the other murder at the site of Ms. Rodgers' murder.

Justice Sonia Sotomayor: Counsel, as I read your briefs, I think you're making, perhaps, two different arguments.

And I want to focus you in on which one you are really concentrating on.

Ward A. Campbell: Okay.

Justice Sonia Sotomayor: Which is, this presentation seems to be that, regardless of what standard we apply to the court of appeals review of what the district court did in denying the motion to substitute counsel, that it was wrong.

And I presume that means it was wrong for the standard you are proposing and it was wrong for the interest of justice standard, am I correct?

Ward A. Campbell: I -- yes, Your Honor.

I think under any standard that would apply, we think that the -- that the Ninth Circuit's disposition is incorrect.

Justice Sonia Sotomayor: All right.

As I read the Ninth Circuit's decision, assuming an interest of justice standard because that's the one they invoked, they said what happened here is that the district court didn't hold a hearing to determine itself exactly what the dispute was about, and so it was a process failure, basically is what they're saying.

Now, you make assumptions based on matters that have come up since that hearing about what the dispute was about and -- but I still don't know what the Federal defender's position was as to whether or not communications had broken down with the client to a point where they thought, as they did on appeal, that they couldn't continue.

So, tell me why, assuming we accept that an interest of justice standard applies, the circuit court has no power or applied it improperly by saying -- forget about the remedy -- has no power to say, district court judges, you have to at a minimum inquire and set forth your reasons based on the facts of that inquiry.

Ward A. Campbell: Yes.

And the reason is that, looking at the record and what was presented to the Federal district court at the time it received the request by Mr. Clair in June of 2005, what Mr. Clair's allegation was was that he disagreed with the investigative, tactical, strategic decisions that were being made by the Federal Public Defender.

That -- that was the reason that was in Mr. Clair's -- Mr. Clair's allegation.

Those premises, even--

Justice Sonia Sotomayor: But what does that have to do with

"I think they are doing a good? "

"I mean, it -- it could well be that the judge later decides, after he hears from the Federal defender, I don't think that -- we don't think there is anything to be done, he disagrees. "

"But he really never got an explanation from the Federal defenders. "

Ward A. Campbell: --I'm sorry--

Justice Sonia Sotomayor: He never got an explanation from the Federal defenders.

Ward A. Campbell: --Your Honor, it in fact -- it would be -- it's appropriate -- if the record -- if the allegations of the -- of the Petitioner and the record before the court is sufficient for the court to make the finding that there is in fact no basis for substitution, it is not necessary for the court to go ahead and conduct an inquiry or a hearing or to initiate other further process in the case; and the allegation here which went to the physical evidence in the case from the standpoint of the evidence in this case, and the way this case is prosecuted, and the evidence of Mr. Clair's guilt, the fact that there was additional physical evidence that might be available, simply wouldn't have supported any cognizable claims in the Federal habeas corpus action.

There was no need for any further investigation or inquiry on the part of the court based on what was presented to it at the time.

Justice Samuel Alito: What about a -- a possible Brady claim?

Is there a disagreement about whether this physical evidence could have been tested at the -- and revealed anything at the time of the trial?

Ward A. Campbell: There I have to -- I think I have to take what the Ninth Circuit says in its opinion about this case, which is what we have here is physical evidence that could be subject to forensic testing now that was not available in 1987.

So the fact that there might be later -- there might have been developments in forensic techniques since 1987 when Mr. Clair's trial occurred, doesn't support any claim of trial error back in 1987.

You can't show any prejudice from any -- from any failure back in 1987 because the testing wasn't available to do that they now want to do.

Justice Samuel Alito: What about an actual innocence claim?

Ward A. Campbell: Well, an actual innocence claim, I think to begin with, it wouldn't be clear, based on this Court's jurisprudence at the time, that a factual innocence claim would be cognizable in this Federal habeas corpus proceeding.

It would be a -- this Court has indicated to the -- has never really actually held that that is a cognizable claim.

Even if it -- it did, it wouldn't be an exhausted, it would certainly be an unexhausted claim.

California in fact does entertain that type of claim, does provide a State avenue for that type of claim.

There is plenty of reasons why you would not raise that claim at this point, especially at the end of the process of the first Federal habeas corpus petition.

Justice Sonia Sotomayor: You are familiar with 3599(e), aren't you?

Ward A. Campbell: Yes.

Justice Sonia Sotomayor: Which requires counsel to participate in subsequent proceedings.

Ward A. Campbell: Yes.

Justice Sonia Sotomayor: Of a certain type and limited.

Is it your position that if there is a complete breakdown of communications with an attorney, post habeas decision, that that is inadequate in the interest of justice or otherwise for a court to say, that could implicate proceedings after 3599, so I should substitute now?

Ward A. Campbell: Actually, Your Honor, yes, it is.

At that point the defendant has, of course, already gone through the trial, the State appeal, and the State habeas process, as -- particularly at the State trial and the State appellate process, of course, the standard for substitution of counsel is the potential total breakdown of communications, the irreconcilable conflict, conflict of interest.

By the time you've gone through the entire process by which you have gone through the State trial, you have exhausted your claims in State court--

Justice Sonia Sotomayor: Oh, but you are presuming you are going to win.

Ward A. Campbell: --Excuse me?

Justice Sonia Sotomayor: You are presuming you are going to win.

I think 3599 applies to situations in which the habeas petitioner wins a remand or otherwise has something that's going to follow the habeas decision.

Ward A. Campbell: Well, Your Honor, the -- the point is is that by the time you have reached that juncture, in which the claims have been raised and litigated multiple times in multiple forums, that the need for the type of communication and contact that occurs at the trial and State appellate level is not as essential or necessary at that juncture.

Justice Ruth Bader Ginsburg: Suppose -- suppose the public defender had said to the district court what it said to the Ninth Circuit, and that is that the attorney-client relationship has broken down to such an extent that substitution would be appropriate, which wasn't asked.

But suppose the public defender had given Would the district that answer to the district judge.

judge still have rightly denied the motion for substitution?

Ward A. Campbell: Yes, he would have, especially given that the case at that point was completely under submission and simply awaiting for decision.

At that point there is in fact no more litigation to be occurring, the -- whatever the problem with communication is at that point is not going to in any way adversely affect the -- the representation.

The case is over.

Justice Elena Kagan: If I understand your answers to some of these questions, you are not at all relying on the fact that the district court had made this decision 2 months earlier.

You think that the answer would be the same had the district court not made an inquiry 2 months earlier; is that correct?

Ward A. Campbell: That -- that is correct.

I mean, if -- yes.

That -- that is an extra fact in this case, but I don't think that's the pivotal fact as far as what the district court has done as far as exercising its direction -- its discretion in June when it received the complaint from Mr. -- Mr. Clair.

Justice Elena Kagan: So when is a district court required to engage in some kind of inquiry?

Ward A. Campbell: Well, when the -- when the allegation is made that -- by the petitioner that he has, in fact, been denied what he is entitled to under 3599, which is the appointment and representation by counsel qualified under that statute.

Justice Elena Kagan: Well, I -- I was, again assuming as Justice Sotomayor was, that if we're in an interest of justice world, if that's the appropriate standard, when is the district -- when does the district court have to make an inquiry, and what kind of inquiry does he have to make?

Ward A. Campbell: The -- the inquiry -- the inquiry would occur when an allegation was made that, for whatever reason, the counsel does not meet the qualifications that are expected to be met, the counsel has a adverse conflict of interest, or counsel has basically reached a point where he is no longer representing or acting as an advocate for--

Justice Elena Kagan: Well, you're -- I thought that that test was an alternative to the interest of justice standard.

I am positing that the interest of justice standard applies and you are giving me back those same three factors.

Do you think that that is all the interest of justice standard is about?

Ward A. Campbell: --I think in the context of the Federal habeas corpus action, that is in fact -- in which there is a statutory right to counsel -- that is in fact the interest -- where the interest of justice standard would be.

The interest of--

Justice Sonia Sotomayor: So this is sort of a made-up standard.

Ward A. Campbell: --No--

Justice Sonia Sotomayor: Can you point to one case in which this standard has been used by any district court or court of appeals?

Ward A. Campbell: --No, I cannot.

Justice Sonia Sotomayor: Can you point to any inquiry by Congress in which such a test was discussed, considered in any way?

Ward A. Campbell: No, I cannot.

Justice Ruth Bader Ginsburg: Where did you get it from?

Ward A. Campbell: It's actually analogous to the way this Court over the years has divided up the jurisprudence regarding the Sixth Amendment right to counsel and the dividing line between claims of ineffective assistance of counsel and claims of denial of counsel.

Justice Sonia Sotomayor: Well, so what you're suggesting is in noncapital cases, which are less serious, you are going to have a higher bar for a right that the statute gives a judge without any limitation.

The capital limitation is that the judge on its own motion or a motion by defendant can substitute.

Ward A. Campbell: No, we're not in the context of a noncapital habeas.

There has never been any construction, certainly by this Court, of what "interest of justice" means in the context of substitution of counsel, of a statutory counsel, in the context of either capital or noncapital habeas.

Justice Sonia Sotomayor: So how about a standard that the courts are used to and one that has a basis in Congress's choice, like interest of justice?

Ward A. Campbell: Well, actually, Your Honor, I think we have in fact, to the extent we are analogizing to what this Court has long done as far as dividing question of Sixth Amendment claims between ineffective assistance of counsel and denial of counsel.

We are in fact submitting a concept that is actually very familiar to this Court and very similar to what this Court deals with in many Sixth Amendment claims.

We are simply looking at it in the context now of the fact that you have been given or entitled, a statutory entitlement to be represented by counsel, you are entitled to protect that right to the extent to vindicate that particular right, which is to be appointed that counsel.

If you are denied that right, then you in fact have a legitimate reason to ask for new counsel, for new counsel to be appointed.

The interest of justice standard doesn't have a fixed meaning, really, in any context.

Justice Stephen G. Breyer: It doesn't have a fixed meaning.

I mean wouldn't you think -- I suspect the answer is you do think -- that -- a district judge has a lot of power in many, many areas and in one of those areas some district judge sometimes could make a horrendous mistake that really wrecks a case, and in such a matter the court of appeals if it sees a really horrendous error will probably have the authority to say you went beyond whatever standard applies, at least here, at least -- okay, we agree on that one.

So they use some words, "effectiveness" and whatever the words are, "interest of justice", just to reflect that fact.

I mean, that's what I think what happens.

And your complaint is he didn't abuse his -- he didn't really abuse anything, he made a good decision, the district judge.

Isn't that what that comes down to?

Ward A. Campbell: That is certainly an aspect of the complaint.

But to us what's very important--

Justice Stephen G. Breyer: What's important?

Ward A. Campbell: --What is important here is that the premise of the Ninth Circuit's opinion is that it would be an acceptable motion for substitution for the -- for Mr. Clair to complain or allege disagreements with his counsel about--

Justice Stephen G. Breyer: All right, so what's bothering you is the way they applied it.

Ward A. Campbell: --Well--

Justice Stephen G. Breyer: And they applied it in circumstances that you think -- the district judge actually, his decision was fine.

You don't have the power to set that aside because it was within -- it's within the scope of any kind of standard you want to call it, including calling it "interest of justice".

Am I right in thinking that, that that's really your concern?

Ward A. Campbell: --Yes, our concern, Your Honor, is that the premise of the Ninth Circuit's opinion is -- goes to what the appropriate standard, what the appropriate level of complaint, whatever you want to call it--

Justice Stephen G. Breyer: So what you really want us to do is to look at the record of the case, go through it, and say, here, whatever words you want to use, the district court acted in his discretion in saying don't change the counsel?

Is that what I'm supposed to do?

I'm trying to get at what you want me to do.

Ward A. Campbell: --Yes, that is -- yes.

Justice Antonin Scalia: Well, no, you don't want that.

You don't want to stay whatever words you used.

Justice Stephen G. Breyer: No--

Justice Antonin Scalia: You want us to say the words to be used are the words that we use in deciding whether you have been accorded your constitutional right to counsel, right?

Ward A. Campbell: That's -- that's correct, Your Honor.

I think the confusion here--

Justice Stephen G. Breyer: --I didn't mean literally "whatever words you use".

I'm trying to figure out what you want me to do.

One is to go back and search all the cases that use some words for a standard, which, as you can tell, I'm reluctant to think that that is meaningful in this case.

The other is to look at the record to see if he acted within what you would normally think of as the district court's discretionary authority.

Ward A. Campbell: --I think the confusion here is caused by the fact that the Ninth Circuit opinion started out by borrowing the phrase "interest of justice" and inserting it into a section where -- where it was not inserted, and it would appear to be a deliberate act of Congress to do that, and then it gave it a meaning which we think under any circumstances would be inappropriate in this context.

Chief Justice John G. Roberts: I suppose you don't think that the standard of review is abuse of discretion, because if you do then I suppose you are assuming that the district court has discretion whether to grant the motion or not instead of being confined by a particular standard.

Ward A. Campbell: Well, abuse of discretion -- if the Court is wrong as a matter of law, of course, it automatically -- I mean, that is an abuse of discretion.

And our feeling here about the Ninth Circuit's opinion is that the way it has defined what would be appropriate in terms of a motion for a substitution and what would trigger an inquiry by the judge, as a matter of law the Ninth Circuit was wrong in this case.

Justice Anthony Kennedy: Well, but abuse of discretion doesn't mean that the judge operates in a vacuum.

If we make -- issue an opinion and say, oh, well, the standard is an abuse of discretion, that doesn't tell people too much.

Abuse of discretion based on what standards, what inquiries?

And that's -- I would like to know what your position is on that, because it seems to me that at the end of the day it's going to be something very close to interest of justice.

Ward A. Campbell: Well, Your Honor, the substance -- if we want to call it an interest of justice standard, the substance of it would be that it would not be -- substitution would not be -- it would not be appropriate to move for substitution on the basis of disagreements with counsel about tactical or investigative decisions, such as Mr. Clair did here.

The appropriate standard is whether or not there has been an actual denial of counsel as provided under section 3599.

Justice Sonia Sotomayor: Counsel, could I give you an example?

Beginning of the litigation, all right?

Capital counsel is appointed.

Capital counsel wants to raise challenges to the conviction and sentence, and defendant says: I don't -- I want to die.

Is the district court entitled to substitute that counsel under your theory?

Because you said to me it has to be counsel that's -- that counsel that has abandoned the client.

Counsel doesn't want to abandon the client, counsel wants to prosecute the case.

There is no conflict of interest.

Counsel's not representing anybody else.

And what was your third criteria?

Ward A. Campbell: Qualifications, just the basic--

Justice Sonia Sotomayor: Well, this is Seth Waxman, sitting right next to you.

Ward A. Campbell: --He's undoubtedly qualified, Your Honor.

Justice Sonia Sotomayor: I suspect that's the case.

Ward A. Campbell: Otherwise he wouldn't have the appointment.

Justice Sonia Sotomayor: So beginning of the case, first decision, and defendant comes in and says: Substitute my attorney.

What would be your argument under your test?

Ward A. Campbell: There are several responses to that.

At one level the client would always -- always has and I think always has basic decisionmaking authority over basic decisions, whether or not a petition should be filed or not filed, this type of thing.

So a failure of an attorney to abide by that particular instruction would in fact be a failure--

Justice Sonia Sotomayor: So there are some decisions that the client controls?

Ward A. Campbell: --There have always been some basic decisions the client makes in any, in any case.

But it's not--

Justice Sonia Sotomayor: But that's not abandonment.

That's an error.

That's a problem.

But it's not abandonment under your definition.

Ward A. Campbell: --It is in fact the failure of the lawyer to truly act as an agent for the client at that point.

Justice Sonia Sotomayor: Well, if I tell my attorney, follow these leads, that's a failure of an agent as well.

Ward A. Campbell: It's actually, though -- that is in fact normally always considered to be an area that's within the domain of the attorney.

Those types of investigative tactical decisions have always been decisions that attorneys have normally made for their clients and not necessarily under the control of their clients.

But let me tell you about the volunteer situation, as a practical matter.

The volunteer situation is a whole -- almost a whole separate category of litigation from the kind of litigation we are talking about.

What normally happens in those cases is counsel is not substituted; usually frequently a second counsel is brought in to deal with representing the client on those particular issues, and the first counsel remains.

So that's become--

Justice Antonin Scalia: Volunteer issue?

What are you talking about?

I'm--

Ward A. Campbell: --A volunteer issue is when someone says: I do not want to pursue my remedies, I want to simply be executed.

In the practice we call that a volunteer.

Justice Antonin Scalia: --You call that a volunteer--

Ward A. Campbell: We call that a volunteer.

Justice Antonin Scalia: --Volunteer.

Volunteering to be executed?

Ward A. Campbell: That's the normal term of art.

Justice Sonia Sotomayor: Given my example, isn't it the case that under the interest of justice standard there will be situations in which a substitution like the one I just posited would be right, that wouldn't be right under your standard?

Ward A. Campbell: Your Honor, I think that actually our standard would cover what is appropriate for protecting the defendant's statutory right to counsel, and that--

Justice Sonia Sotomayor: Are you suggesting that for noncapital defendants Congress chose to give them more rather than less?

Ward A. Campbell: --No, not at all.

I don't think noncapital or capital habeas petitioners have any greater, have any greater right to the assistance of counsel.

Justice Sonia Sotomayor: But you are saying capital have lesser rights.

Ward A. Campbell: My guess -- I don't think this Court has ever drawn a categorical difference between them in terms of what rights are available to them for purposes of representation by counsel.

Justice Sonia Sotomayor: Isn't delay one of the factors that courts routinely look at under the interest of justice standard?

Ward A. Campbell: Yes.

And I -- Once again, any motion for substitution, no matter what standard you use, should be made promptly.

Justice Sonia Sotomayor: So we go back to Justice Breyer's point that, even under the interest of justice standard, you are claiming there was an error?

Ward A. Campbell: Absolutely.

Oh, yes.

Yes.

We would submit even under that standard it would be an error.

Your Honor, unless there is any more questions--

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Waxman.

ORAL ARGUMENT OF SETH P. WAXMAN ON BEHALF OF THE RESPONDENT

Seth P. Waxman: Mr. Chief Justice, and may it please the Court:

The court of appeals held that it was an abuse of discretion to deny substitution without making any inquiry, even of counsel, into the specific situation alleged by Mr. Clair.

The Court did not hold that Mr. Clair was entitled to substitute counsel.

It did not hold that he was entitled to amend his petition.

It did not hold that substitute counsel was even required or advised to seek--

Justice Elena Kagan: Isn't he always--

Chief Justice John G. Roberts: So what if last week we get notice from Mr. Clair that he is dissatisfied with his Supreme Court counsel; that communication has broken down; that you plan to argue particular -- present particular arguments, and he doesn't want you to do that.

Do we have an obligation to conduct an inquiry into his complaint?

Seth P. Waxman: --I think if you have any obligation whatsoever -- and I want to make clear that there are -- these kinds of letters and requests for last minute substitutions happen all the time and in the mine run there may not be any duty of independent inquiry.

If you had one, it would simply be to do what the Court did in March, which is to inquire of the two counsel in the case, is there anything to this, and then rule.

Chief Justice John G. Roberts: No.

He says, I turned up new evidence, or I think this is a great argument, and my counsel has told me he is not going to raise it, and I want new counsel who will raise this argument.

Will we have to say -- look at it and say, well, we have to figure out is that a good argument; is it better than the ones counsel are going to raise?

Has communication broken down?

Seth P. Waxman: No, of course not.

In this situation, the Court had pending before it a first petition for habeas corpus that alleged both ineffective assistance of counsel at trial and specific Brady violations.

And by the way, in answer to your first question, the district judge announced that he was retiring on June 27th, effective the 30th.

So this was beforehand.

Chief Justice John G. Roberts: I want to ask you about that.

You mention that no fewer than six times in your brief.

What is your point, that the judge altered his disposition of a legal matter before him for his personal convenience?

Seth P. Waxman: No.

Chief Justice John G. Roberts: Then what is the significance of the fact that he was going to retire?

Seth P. Waxman: The -- the significance of the fact that he -- he hadn't announced that he was going to retire.

The significance of the fact that he did retire is only to my mind an explanation for why he failed to conduct the minimal inquiry--

Chief Justice John G. Roberts: So you are saying--

Seth P. Waxman: --that he had previously--

Chief Justice John G. Roberts: --So you are saying he violated his judicial oath for his own personal convenience, that he failed to do something that you say he should have done, because he was retiring?

Seth P. Waxman: --I'm not -- he -- The error would have been the same if he had stayed on the bench for another 10 years.

Chief Justice John G. Roberts: So why do you say six times in your brief that the judge was retiring the next day or retired the next day?

Seth P. Waxman: Because -- It goes to their complaints with the remedy in the case.

That is, they are faulting that the remedy is not: Go back and ask this judge to decide whether substitution was appropriate.

Chief Justice John G. Roberts: There's another judge.

Seth P. Waxman: Yes.

Chief Justice John G. Roberts: There's another judge.

She's available.

I have to say it strikes me, frankly, as argument by innuendo that I think is very unjustified.

Seth P. Waxman: Well, I -- I apologize if it gave that impression.

I don't mean any innuendo in the case.

Our proposition is simply this: Prior to adjudicating the claims of ineffective assistance of counsel and Brady, when the court receives a letter that says, Your Honor, I'm sorry for writing a second time.

As you know, I have always maintained that I'm innocent.

My investigator has just discovered physical evidence in of the State's files that he believes may clear me.

My counsel--

Justice Elena Kagan: --Mr. Waxman, what--

Chief Justice John G. Roberts: I'm still trying to get to the point -- I'm sorry.

I'm still trying to get to the point of the relevance of the fact that he was retiring.

Seth P. Waxman: --It goes to the remedy, and it goes to the fact he--

Chief Justice John G. Roberts: How does it go -- How does it go to the remedy?

Seth P. Waxman: --It -- they are alleging that there was an abuse of discretion not to send it back to the judge to do what he had declined to do.

And our proposition is, because substitute counsel had been in place for 5 years and because the judge who had superintended the case for 12 years was no longer there, it was appropriate and within the court of appeals' discretion under 28 U.S.C. 2106 to remand it to the new judge, with new counsel, for -- to allow new counsel simply to ask the new judge, who had not heard all of the witnesses or the evidence, to demonstrate why, if counsel thought it was appropriate, to allow him to amend the petition under Rule 15(a)(2).

Chief Justice John G. Roberts: Well, that was the--

Justice Elena Kagan: --Mr. Waxman--

Justice Samuel Alito: That would be pretty incredible.

Maybe that's what's required.

Why isn't this is a fair reading of what Judge Taylor did?

As of April 29th, as I recall, there was not a problem with the representation.

And the decision was made on June 30th.

Now, on June 16th, that's the time when Clair sent his letter.

By this point, the petition had been pending for a long time before the judge.

The judge presumably was approaching the point where he was going to issue his decision.

He saw the letter.

He could not see any way in which the matters that were discussed in the letters could lead to a claim that would go anywhere.

As to the physical evidence, if it couldn't have been tested at the time of trial, there would not have been a Brady obligation, and an actual innocence claim here would be quite far-fetched in light of the very incriminating statements that -- that Mr. Clair made in the tape recorded conversation.

Had he substituted counsel, he would not have been under an obligation, I think, to allow substituted counsel to amend the petition, which had been pending for a long period of time.

So he said: Counsel is doing a proper job; there doesn't appear to be a conflict of interest; and I'm going to deny this.

Now, counsel could have been appointed and in fact was appointed to represent Mr. Clair going forward.

Why isn't that a fair reading of what he did?

And if so, what need was there for further inquiry?

Seth P. Waxman: Well, this -- it may very well be what was in his thought processes, but we don't know that.

Justice Anthony Kennedy: But we know what was in his thought processes, Mr. Waxman, because 14 days later he issued a 60 or 61-page opinion with -- dealing with 47 different claims, many of which, many of which, related to actual innocence, which was the gravamen of the letter of the complaint on the 16th.

So you -- you can't consider the letter just in isolation from the 61-page opinion that's issued 16 days later.

Seth P. Waxman: Oh, I -- I think that the -- that a district judge faced with a request to substitute counsel at this very late stage is appropriately -- appropriately takes into account everything that has happened, everything that he has allowed to happen, everything that defense counsel has -- has done, and he is obviously permitted to approach this request with a high degree of skepticism, and a strong--

Justice Elena Kagan: --And you are suggesting, Mr. Waxman, that he did not have to make an inquiry in every case, is that right?

You are not saying that.

Seth P. Waxman: --That's right.

I mean--

Justice Elena Kagan: So what -- when does a person have to make an inquiry?

Seth P. Waxman: --Well, of course--

Justice Elena Kagan: What in this case required an inquiry on the judge's part?

Seth P. Waxman: --I think, you know, if the district judge is presented with factually supported allegations that appointed counsel has failed to pursue newly discovered evidence that may be germane to an issue to be decided, especially where the potential import of that evidence is specifically explicated and corroborated by a willing percipient witness, in this case the investigator who viewed it, the district judge has an obligation simply to ask counsel for the State and counsel for the defense, please respond, as the judge did in June -- in March.

Now, in March the judge -- the judge asked for a response--

Justice Elena Kagan: Well, I guess this goes back to Justice Alito's question, but suppose the judge says to himself, even if the response comes in, yes, relations are terrible because the client wants the lawyers to -- to investigate a particular thing and the lawyers don't want to investigate that thing, the judge knows, it doesn't make a difference either way, because he is ready to issue his opinion.

And further investigation of this evidence is not going to change his mind as to any material issue.

Why should the judge not reject the motion?

Seth P. Waxman: --Well, because the judge could not know that based on the allegations in the Ford letter and the Clair letter.

It is not the case, going to Justice Alito's point from my question to my friend, that what was represented in that letter, the new physical evidence related only to DNA testing.

There was a specific allegation that there were fingerprints located at the scene of the crime that previously had been represented to the trial court and to defense counsel either to be unusable or on materials that had gone through the U.S. mail so that the probative value would be limited, and both of those things were untrue.

And Mr. Ford said to the judge:

"I'm prepared to explain to you exactly what those prints are, and they have not been tested against anyone, including the other people who were suspected of the identical type murder the night before in the same area or other potential suspects in this case like Mr. Henrickson. "

Justice Stephen G. Breyer: The Ninth Circuit -- I see -- I think I see what they were trying to get at.

They want -- they don't see anything practical here to do except to try to get the judge, the district judge, to focus on the question of whether the petition should be amended to assert this kind of claim about the new physical evidence; is that right?

Seth P. Waxman: Yes.

They were--

Justice Stephen G. Breyer: That's where they were trying to go.

Okay.

Now, suppose you lose this case.

Suppose they were to say -- suppose this Court said, well, to tell you the truth, that district judge was operating within his authority in saying that this counsel can continue to represent him.

We know subsequently relations broke down and now there is a new counsel.

All right?

Can't the new counsel go back to the district court and say, judge, we would like to amend the petition so that you will consider, you know, whether it should be amended to include this physical evidence claim?

Couldn't he do that?

Seth P. Waxman: --He can't ask to amend a petition in a case in which there's a final judgment.

He could file a -- he could file a Rule 60(b) motion, which he did in this case.

Justice Stephen G. Breyer: And what did--

Seth P. Waxman: And very--

Justice Stephen G. Breyer: --I think you answered this, but I can't remember the answer.

What happened when he filed the 60(b)?

Did they amend the petition or did they consider the thing or not?

Seth P. Waxman: --No.

While the appeal was pending, so that he wouldn't be accused of having simply sat on his rights while the Ninth Circuit was deciding, he filed a Rule 60 -- he filed for leave to file a Rule 60(b) motion and said in essence: Look, the investigator has discovered this new evidence; I haven't been able to test it or examine it; please give me leave to do that, because I believe it may support reopening the judgment.

The district judge said: I'm not going to allow you to make that motion.

The Ninth Circuit issued a mandamus directing the district judge to rule on the motion.

She then denied it, essentially finding that the motion should be denied because Mr. Grele, substitute counsel, hadn't already proven to her what it is that he was seeking to find out, that is what does this evidence show.

Justice Stephen G. Breyer: So there is no -- so in other words -- what the Ninth Circuit in my view is trying to do is they've worked out some complicated way of trying to get the district court to consider the motion about the new physical evidence.

And if that's right, then unless you -- there is no way to get there.

I don't see how you get there under the law.

That's my -- but--

Justice Sonia Sotomayor: Mister--

Justice Stephen G. Breyer: --I'd just like to know what he's thinking.

Seth P. Waxman: I have an answer to your question, but of course I'll defer to any superseding question from--

Justice Sonia Sotomayor: --It has to go with the scope of the remedy that they did.

Seth P. Waxman: --Uh-huh.

Justice Sonia Sotomayor: Assuming, as I do and you just said, that what the Ninth Circuit said is there is -- he should have gotten a reason, an explanation, but now there is a new attorney anyway, so what do we do, isn't the normal thing to do just to remand it, to let the district court decide what steps it wants to take, including to decide whether or not it would have granted the motion for substitution if it had heard the explanation?

Seth P. Waxman: Yes.

Justice Sonia Sotomayor: Meaning, there was a new judge.

But, that doesn't -- a new judge is never stopped from considering what has happened in the case.

Seth P. Waxman: No.

Justice Sonia Sotomayor: And to decide whether under the facts as they existed at the time.

Seth P. Waxman: Of course not.

I mean, even the State acknowledges that asking the judge whether or not there should be substitution when there has been substituted counsel since the appeal was taken is, as they call it, an academic exercise.

But technically the judge--

Justice Sonia Sotomayor: But it's not academic.

It wasn't academic for the judge below, the new judge--

Seth P. Waxman: --Well--

Justice Sonia Sotomayor: --to say, what happened back then; I don't believe the motion was timely; I don't believe that you were foreclosed from doing other things; motion to substitute would have been denied; end of case.

Seth P. Waxman: --I guess I'm not sure there is a huge difference between that and what the Ninth Circuit did or what I understand the Ninth Circuit to be doing, which was to issue an order -- basically say the substitution motion had to be decided within the broad discretion that the law allows before entry of judgment.

I'm going -- we are going to do as best we can to put Mr. Clair back in that position.

It seems to us that since he -- since counsel said, represented, as soon as it was asked after his letter, there is an irreconcilable breakdown and substitution is advised--

Chief Justice John G. Roberts: --Counsel--

Seth P. Waxman: --he has counsel and -- I'm sorry.

Chief Justice John G. Roberts: --No.

I'm trying to help you.

I understood you to say you had an answer to Justice Breyer's question?

Seth P. Waxman: Yes, I do have an answer to Justice Breyer's question, if I can just -- thank you.

If I can just finish answering -- I apologize for my lengthy answers.

Chief Justice John G. Roberts: Why don't you finish your answer to Justice Sotomayor and then go back to Justice Breyer.

Seth P. Waxman: Thank you.

In essence what has happened, what I understand the court of appeals to have decided is to say: Look, because we have had substitute counsel for 5 years and the FPD has said it couldn't continue, we're allowing this to go back and let substitute counsel convince the judge, if it can, if it chooses to, whether or not to exercise its considerable discretion in allowing leave to amend the petition before judgment.

The judge may very well say no, and the case is then back before us.

But it might say yes.

In other words, to do what in essence is the prejudice or materiality inquiry that Judge Taylor would have engaged in if he found that there was a breakdown.

If mean, if there's a breakdown and the judge says that the only new evidence is that the moon was in the fifth house and that doesn't depend on anything, I'm denying -- or it was a new moon, I'm denying this.

Justice Breyer, I -- I agree with you that the Ninth Circuit was struggling to figure out a way to most efficiently resolve the multiple appeals that were pending in front of them.

And they understood from the Rule 60(b) appeal that was also pending and from the appeal on the denial of substitution that there was this newly discovered evidence in the State's files; that the investigator who looked at it thought that it was really important; and they had no record about what it was or whether it should have been considered.

Now, they could have said, well, we're going to direct the Rule 60(b) judge to grant leave to examine the physical evidence and analyze it.

And it was an abuse of discretion of the Rule 60(b) judge not to allow Mr. Clair at least to make some showing.

But the more straightforward way would have been to say: You didn't inquire of counsel; counsel may have had a very good reason for not pursuing this; but in the face of the specific allegation by a willing, percipient witness that there is highly material evidence in the State files and the public defender is refusing to do anything about it, all we think the Ninth Circuit was holding is--

Justice Ruth Bader Ginsburg: That's like -- Mr. Waxman--

Seth P. Waxman: --it was an abuse of discretion not to ask.

I'm sorry, Justice Ginsburg.

Justice Ruth Bader Ginsburg: --Mr. Waxman, I thought this is a case that has been going on for, like, 12 years in the district court.

Seth P. Waxman: Yes.

Justice Ruth Bader Ginsburg: And I thought that the basic disagreement between the client and counsel was counsel said: Our best shot is going to be to keep you alive, so we want to do everything we can to change the death sentence, and then -- and we don't want to detract from that by making a claim of actual innocence when the -- there'd be very slim basis for that.

So, that's the judgment, and it's a strategic judgment, that counsel made: Our best shot to keep this man alive is to concentrate on the penalty phase.

Seth P. Waxman: Justice Ginsburg, if that had -- if the judge had inquired of counsel and counsel had given that reason, that would be something that the Court could evaluate in deciding whether the balancing test that is required by the interests of justice standard satisfied his inquiry.

But we don't have any -- I doubt very much that that is what counsel would have said.

Chief Justice John G. Roberts: Counsel, if -- the interests of justice, does that include the available resources of the Federal Public Defender?

I mean, those offices are notoriously understaffed.

And here you have a situation where one lawyer has been representing an individual for an awful long time, and the defendant says, I want a new lawyer.

It's obviously going to take that -- a new lawyer away from their work and put them in a position of having to get up to speed in a new case.

And I just wonder if that's part of this -- I won't call interest of justice

"a standard -- it's an aspiration. "

"But does that go into the calculus? "

Seth P. Waxman: I would think that that -- not only that goes into the calculus, but all of the I would say well-articulated doctrines that Congress and this Court have applied essentially establishing presumptions against reopening long-litigated matters, whether--

Chief Justice John G. Roberts: Well, that gets to my--

Seth P. Waxman: --All of those things go into the interest of justice balancing.

There's no doubt about it.

Chief Justice John G. Roberts: --Is the -- is the person in a different position with the new counsel than he would have been with the old concerning the standards about reopening things?

In other words, do we say, well, what would the old counsel have been able to do with respect to reopening, and say, well, that's all the new counsel can do?

In other words, new counsel doesn't allow you to circumvent the various--

Seth P. Waxman: Of course.

Chief Justice John G. Roberts: --the restrictions that you just talked about.

Seth P. Waxman: Of course -- of course not.

The only point is, what -- what Clair was basically saying is, my investigator has just found evidence that he believes is highly exculpatory, physical evidence in the State's files that was previously represented not to exist.

My counsel is refusing to do anything about it.

Please give me somebody, whether it's -- have my counsel do it or some new counsel, to present this to the judge, just so the judge can decide in evaluating these, the Brady and the ineffective assistance claim.

And if this is as represented, it could be highly material to those claims.

Chief Justice John G. Roberts: And one of the things I think the district court would do in that situation with the same counsel is say: Look, this was a tactical strategic decision of the lawyer.

You don't get to reopen something because of that.

Now, does that same consideration apply with respect to the substituted counsel, or does the substituted counsel allow the defendant to get a leg up on the process, and make new arguments that the old counsel couldn't make?

Seth P. Waxman: Well, I think that in a value -- if substitute counsel -- if there is a remand in this case and substitute counsel makes a Rule 15 motion, the Court will evaluate that under the broad interests of justice standard.

I mean, whoever the counsel is has to acquit his or her professional obligations.

It may very well have been, Mr. Chief Justice, that if Judge Taylor had said, look, I -- please write to me in 3 days or let's have a status conference and explain to me what's going on; I understand you went to see this evidence.

Why aren't you -- is it true that you are not pursuing it?

And if so, why not?

That would have completely acquitted the judge's responsibility.

Justice Antonin Scalia: Mr. Waxman, the State contends that the interests of justice standard is not the right one.

Why do you contend that it is?

It doesn't appear in -- in 3599, even though it did appear in -- in the previous provision that used to cover these cases, which is 3006A(c).

You want to carry it over from 3006A(c) to 3599.

That -- that seems to me a little strange when they seemingly intentionally omitted it.

Seth P. Waxman: Well, I don't think it's strange, Justice Scalia.

And let me explain at least my own reaction to this.

3599, what -- the mandatory appointment requirement was cleaved from what is now 3006 -- the discretionary appointment, where Congress said in the Controlled Substances Act, look, in death cases, at trial and in habeas, we're not -- we don't want to leave it to the court's or the magistrate's discretion whether or not to appoint.

We are appointing.

And when it did so -- I mean, it is in essence a -- a -- a progeny -- I mean, it is -- it is a cleaving of what was a discretionary obligation.

Congress -- Congress had no need in 3599 to reiterate the language in 30 -- 3006A(c), which itself is not limited to appointments under 3006A(c).

I am reading from page 95 of the petition appendix.

The statute says -- I'm sorry.

It's page 93.

The interests of justice standard says this -- and I'm -- it's the last sentence on page 93A --

"the United States magistrate judge or the Court may in the interests of justice substitute one appointed counsel for another at any stage of the proceedings. "

It doesn't say

"counsel appointed under the discretionary authority of 3006. "

If, like the rest of subsection (c), of which it is a part, is a general rule for duration and substitution of appointments.

So even if it were not true that the sentence itself applied a force, it's, I think, only consistent with what Congress's manifest intention in enacting 35 -- what became 3599(e) to permit that when substitution is requested, that motion be adjudicated in light of the interests of justice.

And indeed, that's what the State told Judge Taylor the standard was in this very case.

I mean, look at it this way, Justice Scalia: imagine that a district court -- I realize that the cases will be few and far between.

Very few, and very far between -- where at a late stage of the proceedings, the Court will interject substitution of counsel over the State's opposition, and over the Court's understandable desire to serve the public interest in efficiently and fairly adjudicating motions.

But in the rare case where the district judge says, gee, I think the public interests -- I think that the interests of justice really would support putting somebody else in here, but I can't because it doesn't fit within one of the three boxes of the tests that the State ex malo has announced in its merits brief in this Court, it's just impossible to imagine that Congress would have wanted a judge to say, gee, this is one of these one in a million cases where the interests of justice really requires, but I can't do it--

Justice Samuel Alito: But the interests of justice is such an open-ended test.

If that is the test, doesn't it follow that it will only be in the rarest of cases that a district judge will have been found -- will be found to have abused his or her discretion in denying a substitution request?

Why does that very broad standard help you here?

Seth P. Waxman: --I mean, we don't -- we're not really arguing about the standard one way or the other.

The point -- the only real question in this case is whether whatever the standard is -- and we think it has to be something like interests of justice -- but a judge in this particular situation with respect to this particular set of circumstances, there is -- my investigator, a willing percipient witness has gone to the police station and found evidence that he believes may well clear me, it requires at a minimum that the judge--

Justice Elena Kagan: Does your argument--

Justice Samuel Alito: I know you think there should be inquiry.

Seth P. Waxman: --I'm sorry?

Justice Samuel Alito: Before your time runs out, how would the finger -- how would the fact that there were fingerprints at the scene that do not match anybody who was known to be in that house have provided evidence for -- provided the basis for any claim that could have established Mr. Clair's innocence at this late -- at this late date, in the face of the other evidence that was present in this case: the recorded statements?

Seth P. Waxman: Well, first of all, the other evidence in this -- the case against Mr. Clair in essence was the wired statement that he made.

And even the trial judge in this case said only of that equivocal statement, that it was

"capable of being regarded as an admission. "

Now, we don't disagree with that.

We're not--

Justice Elena Kagan: --Did -- does your argument depend on a notion that the evidence against the defendant was weak?

In other words, if there were a great deal of evidence against the defendant, would you be making the same argument, that the judge still had a duty to inquire?

Or are you asking us essentially to make a determination that this was an iffy case to begin with?

Seth P. Waxman: --Well, I think the answer -- I know how frustrating this is, but I think the answer is to both -- is yes to both scenarios, particularly because there was no physical evidence linking him, and really, the State's case boiled down to this pretty confusing statement.

It was particularly salient to say, wait a minute.

I mean, the -- the district judge had no idea that there was any dispute about physical evidence, or any physical evidence was in the State's files that hadn't been disclosed and hadn't been--

Justice Samuel Alito: Well, suppose defense counsel had introduced at trial fingerprint evidence showing that 10 people were present at some point in that house and they weren't people who lived there.

That's -- it's weak exculpatory evidence for the defendant at best that there were unknown people in the house.

It might have been the cable guy.

Who knows who they were?

So it doesn't help very much.

Seth P. Waxman: --Justice Alito, I mean, we are of course all arguing in a vacuum here, because we don't know what the fingerprint evidence if it were tested and run against databases would show.

But let me give you one not at all far-fetched example: the State had -- the county coroner had determined that because of the extraordinary similarity between the murder of a woman in the neighborhood -- very close by the night before and this one, including the very peculiar puncture injuries, the coroner's report in the State's file said this is very likely the same perpetrator.

The State has identified the perpetrator of that other crime.

And we don't know whether even at this day the State has matched that perpetrator's fingerprints with the fingerprints that were discovered next to the victim in this case.

And it wouldn't be far-fetched to say that in a case involving either Brady -- may I finish, it will just be this sentence -- Brady or ineffective assistance of counsel, if the fingerprint evidence did link up in that way, it certainly would go into the habeas judge's evaluation of the merits of those claims.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Campbell, you have three minutes remaining.

REBUTTAL ARGUMENT OF WARD A. CAMPBELL ON BEHALF OF THE PETITIONER

Justice Sonia Sotomayor: Can you tell us whether that testing has been done or not?

Ward A. Campbell: No, I don't believe that testing has been done.

Justice Sonia Sotomayor: I'm sorry, no, you don't think it has been?

Ward A. Campbell: No, I don't.

I don't.

The testing has not been done.

The only testing I am aware of is the testing that's discussed in the appendix.

Justice Sonia Sotomayor: In the appendix.

Ward A. Campbell: Which excluded Mr. Goh, who apparently was the perpetrator of the other murderer, from having any DNA at the scene of the Rodgers murder.

And Mr. Goh is dead now, so--

Justice Sonia Sotomayor: I'm sorry.

Then your answer is yes, Mr. Goh's prints don't match the prints found in the file.

Ward A. Campbell: --We -- I am not aware -- the answer is, I am not -- there has been no test comparison of the fingerprints of Mr. Goh, to my -- to my knowledge, in with the -- what was found at the Rodgers murder.

The only testing that we have is the testing that is in the appendix to the opposition to cert regarding the DNA comparisons that were done.

Justice Sonia Sotomayor: That doesn't worry your prosecutor's office?

Ward A. Campbell: I think that the problems that the -- from the standpoint of the prosecutor's office, the -- nothing that could be found about this case would undercut the fact that Mr. Clair--

Justice Sonia Sotomayor: If the fingerprints that were found at the scene of this crime matched Goh, that wouldn't give you pause?

Ward A. Campbell: --It would -- it would certainly be a -- it would certainly -- I think it would give them pause.

Justice Sonia Sotomayor: I'm sorry, what?

Ward A. Campbell: I think -- I think it would give them pause, but the fact is--

Justice Sonia Sotomayor: So why hasn't the test been done?

Ward A. Campbell: --I don't know why the testing has not been done.

But whatever the testing would be, the fact is, Mr. Clair made numerous admissions and numerous statements implicating himself in the murder of Linda -- Ms. Rodgers during the taped conversation that he had with Ms. Flores, which also corroborated Ms. Flores' testimony about his involvement in that murder.

And that is the critical -- the critical evidence in this case.

Now, the California Supreme Court, which has had this information in front of it, has also in fact denied already a petition based on the available evidence about the murders.

I think also if you look--

Justice Antonin Scalia: You -- you don't think it's an iffy case?

Ward A. Campbell: --No, not based on that State's statement.

The State's statements are filled with implied -- implied admissions about what he did with the jewelry, about trying to evade her questions about the case, to do anything to try to avoid having to really confront himself directly with involvement in the case.

It's a -- it really is a very damning -- damning tape--

Justice Ruth Bader Ginsburg: But all that's what -- what he told his girlfriend, right?

There is nothing else.

There is only that?

Ward A. Campbell: --Well, I think the point of it is that the tape -- she testified, and the tape corroborates her testimony.

So in fact, what you have is -- you -- you have mutual reinforcement.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Kagan has our opinion this morning in case, 10-1265, Martel versus Clair.

Justice Elena Kagan: A federal statute called Section 3599 entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings.

Sometimes the attorney-client relationship sours and the defendant may then ask the Court to replace his appointed lawyer.

In this case we consider how a court should decide such a substitution motion.

We adopt the standard that Kenneth Clair, the habeas petitioner here suggests, but we still find that the trial court acted within its discretion in denying his request for a new lawyer.

Clair was convicted of murder in California state court and sentenced to death.

In 1993, he received federally appointed counsel so that he could bring a habeas challenge to his conviction and sentence.

For some years, the case followed the normal course.

His lawyers filed a habeas petition.

The District Court held an evidentiary hearing in August 2004 and by February 2005 the parties had wrapped up their briefing.

But in March 2005, Clair wrote to the Court to ask for new counsel alleging that his attorneys were trying only to reverse his death sentence and not to prove his innocence.

The Court asked for further information about the problem.

Following that inquiry, Clair met with his lawyers and decided that he wanted them to continue to represent him after all.

The Court accordingly said it would take no action on his old request.

But just six weeks later, Clair again asked for new counsel.

In his second letter, Clair repeated his earlier allegations and added a new one that his lawyers were refusing to investigate newly located physical evidence from the crime scene.

A couple of weeks later, the District Court denied Clair's second request for a new lawyer without making further inquiry at the same time, as they denied his habeas petition.

The Ninth Circuit reversed, holding that the District Court abused its discretion by denying Clair's second substitution motion without inquiring further into his complaints.

Our opinion first considers the standard that courts should apply in considering capital habeas petitioner's motions to substitute counsel.

Oddly, the relevant statute that was Section 3599 just doesn't answer this question.

It says that a person in Clair's shoes may move for new counsel, but it does not specify how a court is to decide that motion.

Clair argues that a court should grant a substitution motion when doing so is in the interests of justice.

That standard comes from another federal statute, Section 3006A which today governs the appointment and substitution of counsel in non-capital cases.

By contrast, the State here argues that a court may substitute counsel only when the appointed lawyer has effectively stopped representing his client.

And that is so, the State claims even if the attorney-client relationship has badly deteriorated and a new lawyer can be substituted without significant delay.

We think that on this question, Clair is right.

Our analysis looks to the history of Section 3599.

Prior to that statute's adoption, Section 3006A governs the appointment and substitution of counsel in all cases, both capital and non-capital and Section 3006A, as I just noted, provided that courts should decide substitution motions in the interests of justice.

In 1988, Congress enacted Section 3599 as a kind of spin-off which would apply only to capital cases.

The new statute in a whole raft of ways enhanced the quality of representation that people face the death penalty received, in recognition of the complexity of those cases and the seriousness of the penalty involved.

Given this context, we cannot accept the State's view that Section 3599 made it more difficult for capital defendants and habeas petitioners to replace their attorneys.

We think instead that under Section 3599, the familiar interests of justice standard applies in capital cases just as it did before and just as it does today in non-capital litigation, but we do not think that the District Court abused its discretion under that statute when it denied Clair's second substitution motion.

In almost all cases, a judge must make an inquiry into a motion of this kind to figure out why a defendant thinks he needs a new attorney, but here, the District Court received Clair's letter on the eve of deciding his 10-year-old habeas petition after telling the parties that it would not accept any further submissions in the case including any amendments to Clair's habeas petition based on the new physical evidence.

In these circumstances, a change in lawyer could not have made any difference in the District Court.

Because the habeas litigation was well and truly over there we think the Court acted within its discretion in summarily denying Clair's second substitution motion.

We, therefore, reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings.

Our decision is unanimous.