Coyle v. State: Ineffective Certiorari Counsel is Inconsequential

By: Chris Mincher

The murder of William Porter has been a bit of a wellspring for appellate criminal-law questions (many of which have been covered here already) and they’re still popping up 14 years later. Porter v. State produced judicial ink on self-defense, battered-spouse syndrome, the standard for jury instructions, and other wide-ranging topics. Now, earlier this year, Coyle v. State split the Appellate Court as to whether a defendant can, on the basis of ineffective assistance of counsel, file an untimely petition for writ of certiorari after his attorney — who was appointed by the Office of the Public Defender — botched the initial deadline. (Practice note: If you leave Bethesda at 3 p.m. in standstill beltway rush-hour traffic you may face difficulty getting to the Clerk’s Office in Annapolis by 4:30 close. Just a heads-up.)

Not much in the actual background of the case is relevant for what’s at issue here. (You can read all about it at the above links to our previous writeups). The only really important thing to know is that Seamus Coyle — an alleged co-conspirator in the Porter killing — was convicted and lost his direct appeal, and his appointed appellate attorney missed the deadline to file a petition for writ of certiorari.

Coyle later filed for post-conviction relief alleging ineffective assistance of counsel, including by his appellate attorney, for obvious reasons. The post-conviction court denied relief, holding that Coyle wasn’t prejudiced (a requirement criminal attorneys will know is required by Strickland v. Washington, 466 U.S. 668 (1984)) by his appellate attorney’s unfiled cert petition because “there is not the slightest possibility that the Court of Appeals of Maryland would have granted certiorari in this action had a petition been timely filed.”

No Right to Certiorari Representation

Coyle’s argument to the Appellate Court was that the state Public Defender Act — in particular § 16-204 of the Criminal Procedure Article — entitled him to have effective counsel for all stages of appeal, including for the filing of a writ of certiorari. The first step of that argument is proving a right to counsel exists at the certiorari stage, which Coyle attempted to do by variously relying on a provision of the Act, a corresponding Rule, and Article 24 of the Maryland Declaration of Rights. This didn’t go anywhere: None of the judges bought that either the statute or Rule gave him a right to counsel at the certiorari stage, nor were any of them persuaded that either the federal or state constitution provided that either. (That said, in Coyle’s favor, there also really wasn’t any dispute among the judges that the attorney actually did fail to provide effective assistance.)

Anticipating this possible outcome, Coyle argued all that can be set aside because step two of the analysis can stand alone: Because the Public Defender did appoint him an attorney — even if he didn’t have a right to one — he had a right to effective assistance of that counsel regardless. That was summarily rejected by the majority on the basis that, because Coyle was not entitled to an attorney, he couldn’t be entitled to effective assistance by that attorney. (The majority didn’t precisely identify any authority for that conclusion, but it was presumably the U.S. Supreme Court’s similar decision in Wainwright v. Torna, 455 U.S. 586, 587 (1982), which was discussed earlier in the opinion.)

Appointed Counsel = Effective Counsel?

That final point went too far for Judge Nazarian, who in dissent agreed with Coyle that, once the Public Defender’s Office had appointed him counsel, he had a right to the effective assistance of that counsel. His authority for this is Wilson v. State, 284 Md. 664 (1979), and State v. Flansburg, 345 Md. 694 (1997), particularly the quote, used in both, that “[t]he entitlement to assistance of counsel would be hollow indeed unless the assistance were required to be effective.” Wilson is basically the same scenario as Coyle’s, except at the direct appeal level; Flansburg is the same premise applied to a motion for modification of sentence, also holding that the right to counsel created by the Public Defender Act mandated effective assistance of that counsel.

In both cases, however, there wasn’t a dispute that the defendant had a right to representation. This is evident from the quote itself: “Entitlement to assistance of counsel would be hollow indeed unless the assistance were required to be effective.” It’s all pegged to “entitlement” to counsel and here there is no such entitlement.

Judge Nazarian’s dissent recognizes the link in the precedent between a right to counsel and a right to effective counsel, which he resolves this way: “The only distinction between this case and Flansburg is that Mr. Flansburg’s right to a public defender, on the posture of his particular case, was mentioned expressly in the Public Defender Act whereas Mr. Coyle’s arose through the Office’s discretionary authority. So at most, I suppose, Mr. Coyle had the right to ask the Public Defender to represent him.” He says that’s “a distinction without a difference,” but I don’t know if I can agree that easily. A right to something, as opposed to only a right to ask for something, seems like a pretty big difference to me. One entitles you to the thing, and the other does not.

Termination Provision and Policy

With the full realization that this may seem like excessive nuance, there may be something to Judge Nazarian’s argument even if it wasn’t specifically mentioned by either him or the majority. Though all agree there is no general right to counsel at the certiorari stage, once Coyle was appointed a panel attorney by the Public Defender’s Office, he arguably did have a statutory right to representation — not from CP § 16-204, but from the following termination provision at CP § 16-205, which reads, “Representation of an indigent individual by the Office or by a panel attorney shall continue until the final disposition of the case or until the assigned attorney is relieved by the Public Defender or order of the court in which the case is pending.”

The Supreme Court has already said what “final disposition of the case” is: “The point where judgment of conviction was rendered, the availability of (final) appeal exhausted, and the time for petition for certiorari has elapsed.” Franklin v. State, 470 Md. 154, 186 (2020). So that prong clearly captures the certiorari stage. At the time of the certiorari petition, Coyle’s attorney hadn’t been relieved by the Public Defender nor a court. Until any of those things happened, CP § 16-205 could be read to have entitled Coyle to having the representation continue, which would then entitle him to effective representation pursuant to Wilson and Flansburg.

On any account, it’s hard to argue with the policy arguments behind Judge Nazarian’s reasoning. As he noted, if a defendant is given counsel, but has no right to effective counsel, the defendant has no remedy if the attorney royally screws up the representation — he remains convicted and sentenced, through no fault of his own, even if he had slam-dunk grounds for certiorari. That’s a pretty unfair result. So if there’s not really meritorious authority to fix that by judicial decision (but maybe there is) it certainly seems like an appropriate matter to address through an amendment to the Rules.