On September 13, 2013, the Eleventh Circuit (Pryor, with Barkett specially concurring and Jordan concurring) held that the district court did not abuse its discretion in ruling that Holland v. Florida, 130 S.Ct. 2549 (2010) was not an extraordinary circumstance that warranted vacating a final judgment that dismissed Paul Howell’s habeas petition as untimely. Howell v. Secretary, Florida Dept. of Corrections, ___ F.3d ___, 2013 WL 4873933 (11th Cir. Sept. 13, 2013).
Barkett’s special concurrence agreed that circuit precedent mandated affirming the district court’s denial of the Rule 60(b) motion. She continued to believe, however, "that it is unjust and inequitable to require death row inmates to suffer the consequences of their attorneys’ negligence." In her view, "this is another case where a state’s wholly inadequate system for appointing or funding habeas counsel conspires with a thicket of complex state and federal habeas procedural rules to deny habeas petitioners the opportunity to have their substantive constitutional claims heard by a federal court." This system is "antithetical to the promise of habeas corpus enshrined in the Constitution." She concluded: "Here, Mr. Howell appears to have colorable claims that both his trial attorney, who fabricated death threats to be excused from representing Mr. Howell, and his initial habeas attorney, who did not even contact Mr. Howell until after his federal habeas deadline had passed, were incompetent, ineffective, and deeply unprofessional. I continue to believe that it is unconstitutional and immoral for death row inmates to lose a fundamental constitutional right because of their attorney’s errors, especially when they are as egregious as those we deal with here."
Jordan concurred in and joined the Court’s opinion. Because Howell asserted that he would be the first person in Florida to be executed without having his federal habeas petition considered on the merits, Jordan wrote separately to explain why he believed Howell would not have been entitled to relief even if the three claims he raised in his petition had received full habeas review.