Justices Reject Incarcerated Man's Atty Abandonment Claim

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The U.S. Supreme Court on Monday declined to hear the case of a Texas man incarcerated on death row who says his court-appointed lawyer deprived him of a fair chance at challenging his conviction in a 2005 double homicide.

In an order list, the high court denied certiorari for Joseph Gamboa, who alleges his attorney barely met with him and conducted one day of legal research before filing a copied-and-pasted habeas corpus petition that was ultimately rejected.

Gamboa had urged the justices to resolve what he says is a split between the Fifth Circuit and the Second, Seventh and Ninth circuits. The latter courts, he said, allow incarcerated people abandoned by their attorneys to reopen a habeas judgment under Federal Rule of Civil Procedure 60(b).

"But in the Fifth Circuit, he will be put to death without having the assistance of counsel to file his habeas petition or having his claims reviewed," Gamboa's September petition for certiorari said.

Texas Attorney General Ken Paxton, on the other hand, contended that there is no circuit split for the Supreme Court to resolve. And in any event, Gamboa's counsel didn't perform any sort of "disappearing act" and instead "continuously and ably represented Gamboa," the state argued in urging the justices not to grant certiorari.

A jury convicted Gamboa of capital murder in 2007 for the killings of two men during a robbery at a San Antonio bar — murders Gamboa "steadfastly denies committing," Gamboa's petition said.

Under the Antiterrorism and Effective Death Penalty Act, Gamboa had "one fair opportunity" to seek habeas relief from his conviction in federal court, the petition said. He attempted to do so in 2015 after unsuccessful efforts to challenge his conviction through the state process.

Gamboa alleges his lawyer, John Ritenour, abandoned substantive work on his case "almost immediately after" he was appointed. Following a year of extensions and "virtually no work on the case," Ritenour turned over a generic habeas petition that was copied and pasted from that of another client, Gamboa said.

And in response to the state of Texas' answer to the petition, Gamboa said that Ritenour conceded in a two-paragraph reply filing that the claims in the petition were foreclosed.

The federal court denied Gamboa's habeas petition, and later refused his motion to reopen the proceedings and denied him a certificate of appealability, the petition said. The Fifth Circuit affirmed the ruling and declined to review the case en banc.

Gamboa is represented by John P. Elwood, Andrew T. Tutt, Sean A. Mirski, Dana Or, Jack Hoover, Paul J. Fishman, William T. Sharon, Nicole L. Masiello, Jacob P. Saracino and Aidan D. Mulry of Arnold & Porter Kaye Scholer LLP and by Stephen Ferrell, Susanne Bales and Emily Elison of Federal Defender Services of Eastern Tennessee Inc.

Bobby Lumpkin, director of the Correctional Institutions Division of the Texas Department of Criminal Justice, is represented by Ken Paxton, Brent Webster, Josh Reno, Edward L. Marshall and Ali M. Nasser of the Texas Office of the Attorney General.

The case is Joseph Gamboa v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, case number 23-323, in the Supreme Court of the United States.

--Editing by Daniel King.

For a reprint of this article, please contact reprints@law360.com.



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