Cite as: 574 U. S. ____ (2015) 1 

Per Curiam 

SUPREME COURT OF THE UNITED STATES 

MARK A. CHRISTESON v. DON ROPER, WARDEN 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
 

No. 14–6873. Decided January 20, 2015

 PER CURIAM. 

 Petitioner Mark Christeson’s first federal habeas petition was dismissed as untimely. Because his appointed

attorneys—who had missed the filing deadline—could not

be expected to argue that Christeson was entitled to the

equitable tolling of the statute of limitations, Christeson 

requested substitute counsel who would not be laboring 

under a conflict of interest. The District Court denied the 

motion, and the Court of Appeals for the Eighth Circuit 

summarily affirmed. In so doing, these courts contravened our decision in Martel v. Clair, 565 U. S. ___ (2012). 

Christeson’s petition for certiorari is therefore granted, 

the judgment of the Eighth Circuit is reversed, and the 

case is remanded for further proceedings. 

I 

In 1999, a jury convicted Christeson of three counts of

capital murder. It returned verdicts of death on all 

three counts. The Missouri Supreme Court affirmed

Christeson’s conviction and sentence in 2001, see State v. 

Christeson, 50 S. W. 3d 251 (en banc), and affirmed the 

denial of his postconviction motion for relief in 2004, see 

Christeson v. State, 131 S. W. 3d 796 (en banc). 

Under the strict 1-year statute of limitations imposed by 

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U. S. C. §2244(d)(1), Christeson’s federal 

habeas petition was due on April 10, 2005. Nine months 

before this critical deadline, the District Court appointed 

attorneys Phil Horwitz and Eric Butts to represent 
 

 

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Christeson in his federal habeas proceedings. See 18 

U. S. C. §3599(a)(2) (providing for appointment of counsel 

for state death row inmates). 

Horwitz and Butts, as they have subsequently acknowledged, failed to meet with Christeson until more than six 

weeks after his petition was due. See App. to Pet. for Cert.

93a. There is no evidence that they communicated with

their client at all during this time. They finally filed the 

petition on August 5, 2005—117 days too late. They have

since claimed that their failure to meet with their client 

and timely file his habeas petition resulted from a simple 

miscalculation of the AEDPA limitations period (and in 

defending themselves, they may have disclosed privileged 

client communications). See id., at 90a–92a, 135a. But a 

legal ethics expert, reviewing counsel’s handling of 

Christeson’s habeas petition, stated in a report submitted 

to the District Court: “[I]f this was not abandonment, I am 

not sure what would be.” Id., at 132a. 

The District Court dismissed the petition as untimely,

and the Court of Appeals denied Christeson’s application 

for a certificate of appealability. Christeson, who appears

to have severe cognitive disabilities that lead him to rely 

entirely on his attorneys, may not have been aware of this 

dismissal. See id., at 229a, 231a, 237a. 

Nearly seven years later, Horwitz and Butts contacted

attorneys Jennifer Merrigan and Joseph Perkovich to 

discuss how to proceed in Christeson’s case. Merrigan and

Perkovich immediately noticed a glaring problem.

Christeson’s only hope for securing review of the merits of

his habeas claims was to file a motion under Federal Rule 

of Civil Procedure 60(b) seeking to reopen final judgment 

on the ground that AEDPA’s statute of limitations should 

have been equitably tolled. But Horwitz and Butts could 

not be expected to file such a motion on Christeson’s behalf, as any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the 
 

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habeas petition. While initially receptive to Merrigan and 

Perkovich’s assistance, Horwitz and Butts soon refused to 

allow outside counsel access to their files. See App. to Pet. 

for Cert. 345a. 

On May 23, 2014, Merrigan and Perkovich filed a motion for substitution of counsel. The District Court denied 

the motion, explaining only that it was “not in 

[Christeson’s] best interest to be represented by attorneys

located in New York and Pennsylvania,” as Merrigan and 

Perkovich are. Id., at 169a. The District Court did not 

address Merrigan and Perkovich’s offer to forgo all fees 

and expenses associated with travel to Missouri, nor did it 

address the possibility of appointing other attorneys for

Christeson. 

Christeson appealed. The Eighth Circuit dismissed for

lack of jurisdiction, apparently reasoning that Merrigan 

and Perkovich were not authorized to file an appeal on

Christeson’s behalf.1 On September 19, 2014, while this

appeal was still pending before the Eighth Circuit, the

Missouri Supreme Court issued a warrant of execution 

setting October 29, 2014, as Christeson’s execution date. 

After further proceedings not relevant here, Merrigan

and Perkovich again filed a motion for substitution of 

counsel on Christeson’s behalf. The District Court again 

denied the motion. Explaining that substitution of 

“federally-appointed counsel is warranted only when it would 

serve the interests of justice,” it offered four reasons for its 

decision. Order in No. 04–CV–08004 (WD Mo., Oct. 22,

2014), p. 1, App. to Pet. for Cert. 375a (quoting Lambrix v. 

Secretary, Florida Dept. of Corrections, 756 F. 3d 1246, 

1259 (CA11 2014); internal quotation marks omitted). 

First, it deemed the motion to be untimely because it “was

not filed until 2014, and shortly before [Christeson’s] 

—————— 

1Christeson has since submitted a signed retainer agreement with

Merrigan and Perkovich that removes any doubt on that score. 
 

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execution date.” App. to Pet. for Cert. 375a. Second, it 

observed that Horwitz and Butts had not “abandoned” 

Christeson, as they had recently appeared on his behalf in

a class-action lawsuit challenging Missouri’s lethal injection protocol. Id., at 376a. Third, it noted that although

Horwitz and Butts had represented Christeson before the 

Eighth Circuit, that court had not appointed substitute

counsel. Ibid. Fourth and finally, the District Court

expressed its belief that granting the motion would set “an

untenable precedent” by allowing outside attorneys to seek 

“‘abusive’” delays in capital cases. Ibid. 

Christeson again appealed. This time, the Eighth Circuit summarily affirmed the District Court’s order. We 

stayed Christeson’s execution, see post, p. ____, and now 

reverse. 

II 

Title 18 U. S. C. §3599 “entitles indigent defendants to

the appointment of counsel in capital cases, including 

habeas corpus proceedings.” Martel v. Clair, 565 U. S., at 

___ (slip op., at 1). “By providing indigent capital defendants with a mandatory right to qualified legal counsel in

these proceedings, Congress has recognized that federal

habeas corpus has a particularly important role to play in 

promoting fundamental fairness in the imposition of the 

death penalty.” McFarland v. Scott, 512 U. S. 849, 859 

(1994). Congress has not, however, conferred capital 

habeas petitioners with the right to counsel of their choice. 

Instead, the statute leaves it to the court to select a 

properly qualified attorney. See §§3599(a)–(d). But the 

statute contemplates that a court may “replace” appointed 

counsel with “similarly qualified counsel . . . upon motion” 

of the petitioner. §3599(e). 

We addressed the standard that a court should apply in 

considering such a motion in Clair. We rejected the argument that substitution of an appointed lawyer is war-
Cite as: 574 U. S. ____ (2015) 5 

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ranted in only three situations: “when the lawyer lacks the 

qualifications necessary for appointment . . . ; when he has 

a disabling conflict of interest; or when he has completely

abandoned the client.” 565 U. S., at ___ (slip op., at 7)

(internal quotation marks omitted). Instead, we adopted a

broader standard, holding that a motion for substitution 

should be granted when it is in the “‘interests of justice.’” 

Id., at ___ (slip op., at 13). We further explained that the 

factors a court of appeals should consider in determining

whether a district court abused its discretion in denying 

such a motion “include: the timeliness of the motion; the 

adequacy of the district court’s inquiry into the defendant’s complaint; and the asserted cause for that complaint, 

including the extent of the conflict or breakdown in communication between lawyer and client (and the client’s

responsibility, if any, for that conflict).” Ibid. 

The District Court here properly recognized that its

consideration of Christeson’s motion for substitution was 

governed by Clair’s “interests of justice” standard. But its 

denial of his motion did not adequately account for all of 

the factors we set forth in Clair. 

The court’s principal error was its failure to 

acknowledge Horwitz and Butts’ conflict of interest. Tolling based on counsel’s failure to satisfy AEDPA’s statute 

of limitations is available only for “serious instances of 

attorney misconduct.” Holland v. Florida, 560 U. S. 631, 

651–652 (2010). Advancing such a claim would have

required Horwitz and Butts to denigrate their own performance. Counsel cannot reasonably be expected to make

such an argument, which threatens their professional

reputation and livelihood. See Restatement (Third) of 

Law Governing Lawyers §125 (1998). Thus, as we observed in a similar context in Maples v. Thomas, 565 U. S. 

___, ___, n. 8 (2012) (slip op., at 17, n. 8), a “significant 

conflict of interest” arises when an attorney’s “interest in

avoiding damage to [his] own reputation” is at odds with 
 

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his client’s “strongest argument—i.e., that his attorneys 

had abandoned him.” 

Indeed, to their credit, Horwitz and Butts acknowledged

the nature of their conflict. Shortly before the first motion

for substitution was filed, they provided an update to the 

Missouri Supreme Court on the status of Christeson’s 

collateral proceedings. In it, they stated:

“Because counsel herein would be essential witnesses 

to factual questions indispensable to a Holland inquiry, there may be ethical and legal conflicts that

would arise that would prohibit counsel from litigating issues that would support a Holland claim. Unwaivable ethical and legal conflicts prohibit undersigned counsel from litigating these issues in any way. 

See Holloway v. Arkansas, 435 U. S. 475, 485–486 

(1978). Conflict free counsel must be appointed to 

present the equitable tolling question in federal district court.” App. to Pet. for Cert. 48a–49a. 

Yet, in their response to the District Court’s order to

address the substitution motion, Horwitz and Butts characterized the potential arguments in favor of equitable

tolling as “ludicrous,” and asserted that they had “a legal 

basis and rationale for the [erroneous] calculation of the

filing date.” Id., at 86a, 90a. While not every case in 

which a counseled habeas petitioner has missed AEDPA’s 

statute of limitations will necessarily involve a conflict of 

interest, Horwitz and Butts’ contentions here were directly

and concededly contrary to their client’s interest, and 

manifestly served their own professional and reputational 

interests. 

Clair makes clear that a conflict of this sort is grounds

for substitution. Even the narrower standard we rejected 

in that case would have allowed for substitution where an 

attorney has a “‘disabling conflict of interest.’” 565 U. S., 

at ___ (slip op., at 7). And that standard, we concluded, 
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would “gu[t]” the specific substitution-of-counsel clause 

contained in §3559(e), which must contemplate the granting of such motions in circumstances beyond those where a

petitioner effectively “has no counsel at all”—as is the case 

when counsel is conflicted. Id., at ___ (slip op., at 10). 

Indeed, we went so far as to say that given a capital defendant’s “statutory right to counsel,” even “in the absence” of §3599(e) a district court would be compelled “to 

appoint new counsel if the first lawyer developed a conflict.” Ibid. 

Given the obvious conflict of interest here, the considerations relied upon by the District Court cannot justify its 

decision to deny petitioner new counsel. The second and 

third factors noted by the District Court—that appointed

counsel continued to represent Christeson in litigation

challenging the means of his execution, and that the 

Eighth Circuit had not previously substituted counsel—

are not substantial. Whether Horwitz and Butts had 

currently “abandoned” Christeson is beside the point:

Even if they were actively representing him in some matters, their conflict prevented them from representing him 

in this particular matter. Likewise, it is irrelevant that 

the Eighth Circuit had not previously sua sponte directed 

substitution of counsel in the course of denying

Christeson’s request for a certificate of appealabilty and

adjudicating his challenge to Missouri’s execution protocol, 

when the conflict was not evident. 

The first and fourth factors cited by the District Court—

the delay in seeking substitution and the potential for

abuse—might be valid considerations in many cases. See 

Clair, 565 U. S., at ___ (slip op., at 12) (“Protecting against 

abusive delay is an interest of justice”). But under the 

circumstances here, these factors alone cannot warrant 

denial of substitution. Christeson’s first substitution 

motion, while undoubtedly delayed, was not abusive. It 

was filed approximately a month after outside counsel 
 

 

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became aware of Christeson’s plight and well before the

State had set an execution date, and it requested only 90

days to investigate and file a Rule 60(b) motion.

Nor is it plain that any subsequent motion that substitute counsel might file on Christeson’s behalf would be 

futile. See id., at ___ – ___ (slip op., at 15–16) (affirming 

denial of substitution motion as untimely where any filing 

made by substitute counsel would have been futile). To be 

sure, Christeson faces a host of procedural obstacles to 

having a federal court consider his habeas petition. Although Christeson might properly raise a claim for relief

pursuant to Rule 60(b), see Gonzalez v. Crosby, 545 U. S. 

524, 535–536 (2005), to obtain such relief he must demonstrate both the motion’s timeliness and, more significant 

here, that “ ‘extraordinary circumstances’ justif[y] the

reopening of a final judgment.” Id., at 535 (quoting 

Ackermann v. United States, 340 U. S. 193, 199 (1950)). 

That, in turn, will require Christeson to show that he was

entitled to the equitable tolling of AEDPA’s statute of 

limitations. He should have that opportunity, and is 

entitled to the assistance of substitute counsel in doing so. 

* * * 

The petition for certiorari and the motion to proceed in 

forma pauperis are granted. The judgment of the Eighth

Circuit Court of Appeals is reversed, and the case is 

remanded for further proceedings consistent with this 

opinion. 

It is so ordered. 
 

Cite as: 574 U. S. ____ (2015) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

MARK A. CHRISTESON v. DON ROPER, WARDEN 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
 

No. 14–6873. Decided January 20, 2015

 JUSTICE ALITO, with whom JUSTICE THOMAS joins,

dissenting. 

I would not reverse the decision of the Court of Appeals

in this case without briefing and argument. As the Court 

acknowledges, petitioner cannot obtain review of the 

merits of his federal habeas claims without showing that

the applicable statute of limitations should have been

equitably tolled, ante, at 2, and the availability of equitable tolling in cases governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) is a question 

of great importance.

AEDPA sought to ameliorate the lengthy delay that had

often characterized federal habeas proceedings in the

past.* See Woodford v. Garceau, 538 U. S. 202, 206 (2003) 

(“Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in

capital cases”). AEDPA thus imposed a strict 1-year time

limit for filing a federal habeas petition. 28 U. S. C. 

§2244(d). If this 1-year period were equitably tolled 

whenever a habeas petitioner’s attorney missed the deadline and thus rendered ineffective assistance, the 1-year

period would be of little value, and the days of seemingly 

interminable federal habeas review would return. In 

—————— 

*Members of this Court have lamented the delay that often occurs in

capital cases. Johnson v. Bredesen, 558 U. S. 1067, 1067–1070 (2009) 

(Stevens, J., statement respecting denial of certiorari), Elledge v. 

Florida, 525 U. S. 944, 944–946 (1998) (BREYER, J., dissenting from 

denial of certiorari). 
 

 

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Holland, the Court held that the AEDPA statute of limitations may be equitably tolled—but only under quite extraordinary circumstances. Holland v. Florida, 560 U. S. 

631, 651–652 (2010). Any expansion or further delineation of such circumstances should not be undertaken 

without the careful consideration that is possible only

after the normal procedure of full briefing and argument.

The Court believes that briefing and argument are not 

necessary in this case, and my understanding of the 

Court’s decision is that it expresses no view whatsoever on 

the question whether petitioner may ultimately be entitled 

to equitable tolling. I understand the Court to hold only

that conflict-free substitute counsel should have been 

appointed for the purposes of investigating the facts related to the issue of equitable tolling and presenting whatever argument can be mounted in support of a request for 

that relief. 

Based on the present record, it is not clear that this case

involves anything other than an error, albeit a serious one,

on the part of the attorneys who represented petitioner at 

the time when his federal habeas petition was due to be 

filed. According to those attorneys, they miscalculated the

due date and as a result filed the petition after the time 

had run. They met with petitioner to discuss the habeas

petition prior to the date on which they say they thought 

the petition was due but after the date on which it was

actually due. These facts show nothing more than attorney error and thus fall short of establishing the kind of 

abandonment that is needed for equitable tolling under 

our precedent. See id., at 651–652. I do not understand 

the Court’s opinion to hold otherwise. 

Because of the close relationship between the question

that the Court decides (the propriety of the District

Court’s refusal to appoint substitute counsel) and the 

question of petitioner’s entitlement to equitable tolling, I

think that plenary review would have been more appro-
Cite as: 574 U. S. ____ (2015) 3 

ALITO, J., dissenting 

priate in this case. I write separately to emphasize that 

the Court’s summary disposition does not address that

issue.