June, 2012 - From Other States

Oregon  Defendant Did Not Waive
Right to Counsel

The Oregon Supreme Court held that the trial court erred by requiring the defendant to proceed pro se without first securing a valid waiver of his right to counsel at the penalty phase of the proceedings.  The defendant moved to withdraw his appointed attorney and the trial court refused, ordering defendant to choose between proceeding with counsel or proceeding in pro per, with or without stand-by counsel.  The defendant did not accept either choice, and the court ordered him to represent himself.  The Supreme Court found that the trial court failed to give the defendant a reasonable opportunity to present his position, without forcing him to violate the attorney-client privilege, and that the trial court erred in ruling that, by declining to make the described choice, defendant had requested to represent himself pro se.  Defendant did not engage in a knowing and intentional “waiver by conduct” of his right to counsel.  Because submission of the choice to defendant was itself impermissible, defendant’ refusal to make the choice was proper.  State v. Langley, 351 Ore. 652 (2012).

Second Circuit  Defense Counsel’s
Ineffectiveness Caused Equitable Tolling

The Second Circuit Court of Appeals agreed with the petitioner that the negligence of his attorney, Pro Se Litigators (PSL), constituted an extraordinary circumstance warranting equitable tolling of the one-year limit for filing a petition for writ of habeas corpus under the Anti-Terrorism and Effective Death Penalty Act.  PSL failed to file the habeas petition, despite its repeated promises and the petitioner’s request to do so.  Moreover, the Court found that the petitioner could not make informed decisions about his representation because PSL did not inform him of the true state of his petition or the law surrounding it, including the time restraints.  Finally, the Court found that the petitioner was diligent in trying to figure out how to proceed between the time he learned PSL was not going to file the petition and the time petitioner ultimately filed it.  The Court remanded for reconsideration and ordered that counsel be appointed.  Nickels v. Conway, ___F.3d___(CA 2, #10-4228-pr, 05-08-12).