Harbison v. Bell

PETITIONER:Edward Jerome Harbison
RESPONDENT:Ricky Bell, Warden
LOCATION: Criminal Court of Hamilton County

DOCKET NO.: 07-8521
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 556 US (2009)
GRANTED: Jun 23, 2008
ARGUED: Jan 12, 2009
DECIDED: Apr 01, 2009

Dana C. Hansen Chavis – on behalf of the petitioner
William M. Jay – Assistant to the Solicitor General, Department of Justice, for the United States, as amicus curiae, in support of the judgment below

Facts of the case

Edward Jerome Harbison was convicted in a Tennessee state court of first-degree murder, second-degree burglary, and grand larceny, and was sentenced to death. After unsuccessfully appealing his case through the Tennessee courts, a federal district court appointed Mr. Harbison a federal public defender to represent him in filing a federal habeas corpus petition. That petition was denied by the both the federal district court as well as the U.S. Court of Appeals for the Sixth Circuit. As Tennessee law does not authorize the appointment of state public defenders as counsel in state clemency proceedings, Mr. Harbison’s federal public defender requested to represent him in his state clemency proceedings. Both the district court and Sixth Circuit denied the request, holding that federal law does not authorize federal compensation for legal representation in state matters.


1) According to 28 U.S.C. Section 2254, is a certificate of appealability required to appeal an order denying a request for federally-funded counsel?

2) Does 18 U.S.C. Section 3599 permit federally-funded habeas counsel to represent a condemned inmate in state clemency proceedings when the state has denied state-funded counsel for that purpose?

Media for Harbison v. Bell

Audio Transcription for Oral Argument – January 12, 2009 in Harbison v. Bell

Audio Transcription for Opinion Announcement – April 01, 2009 in Harbison v. Bell

John G. Roberts, Jr.:

Justice Stevens has the opinion this morning in case 07-8521, Harbison versus Bell.

John Paul Stevens:

This case comes to us from the United States Court of Appeals for the Sixth Circuit.

The petitioner was sentenced to death by a Tennessee court in 1983.

Five years later, Congress enacted the Anti-Drug Abuse Act of 1988 which create a new capital offense.

Section 3599 of that Act authorized the appointment of counsel to represent indigent defendants in capital cases including federal habeas corpus proceedings challenging death sentences imposed in state courts and also in “proceedings for executive or other clemency”.

In 1997, after petitioner exhausted his state remedies, a Federal District Judge appointed counsel to represent him in a federal challenge to his death sentence.

That challenge was ultimately unsuccessful.

The question that is now presented to us is whether Section 3599 authorizes his attorney to represent him in Tennessee’s clemency proceedings.

The Court of Appeals held that although such representation is authorized for federal clemency proceedings, it is not authorized for a state clemency proceeding.

We disagree.

For reasons stated in an opinion filed with the clerk, we hold that Section 3599 does authorize federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation.

The Chief Justice and Justice Thomas have filed separate opinions concurring in the judgment.

Justice Scalia has filed an opinion concurring in part and dissenting in part in which Justice Alito has joined.