Yikes! Was I Wrong? A Second Look at the Viability of Monitoring Capital Postconviction Counsel

27 Pages Posted: 23 Jul 2014

See all articles by Celestine Richards McConville

Celestine Richards McConville

Chapman University, The Dale E. Fowler School of Law

Date Written: 2012


Albert Holland brought his complaints about his postconviction counsel to the correct party – the party that had a statutory obligation to monitor counsel’s performance. Despite this obligation, the Florida Supreme Court failed to spot and prevent a major (and preventable) error – the failure to properly calculate and meet the deadline for filing a federal habeas petition. Holland’s case calls into question the efficacy of monitoring as a tool for promoting the delivery of competent assistance – a tool this author has argued is constitutionally required to protect the statutory right to capital postconviction counsel. That the case took place in Florida – a pioneer in the context of capital postconviction counsel because unlike other death penalty states it requires monitoring – makes the question more pronounced. If Albert Holland could not get quality monitoring in Florida, then perhaps quality monitoring is unattainable.

As explained in this Article, however, the monitoring failure in Holland does not undermine reliance on monitoring as a way of promoting effective assistance of capital postconviction counsel. Instead, Florida’s monitoring system malfunctioned for two reasons: First, it utilizes the judiciary as the monitoring entity instead of an independent entity with expertise and commitment to the enterprise. While the judiciary possesses the necessary expertise to perform the monitoring function, its literal failure to monitor suggests a lack of such commitment. Second, neither the legislature nor the courts have established a structure for exercising the monitoring obligation, and this lack of structure not only makes it difficult to effectively and thoroughly monitor counsel’s performance, but also decreases the likelihood that courts will actually engage in monitoring.

So the lessons from Holland? With a dedicated entity, a clear structure, and a proactive stance, monitoring remains an efficacious tool in promoting the delivery of competent assistance of postconviction counsel.

Note: Copyright Maine Law Review.

Keywords: capital punishment, death penalty, postconviction, postconviction counsel, right to counsel, monitoring, ineffective assistance, effective assistance

Suggested Citation

McConville, Celestine Richards, Yikes! Was I Wrong? A Second Look at the Viability of Monitoring Capital Postconviction Counsel (2012). 64 Maine L. Rev. 486 (2012), Available at SSRN: https://ssrn.com/abstract=2466613

Celestine Richards McConville (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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