A Death Row Lawyer Blunders. Must His Client Pay the Price?

Joseph Gamboa, a death row inmate in Texas, says his court-appointed lawyer robbed him of the chance to challenge his murder conviction in federal court. Among other things, court records show, the lawyer ignored evidence supplied by Mr. Gamboa, filed a cut-and-paste habeas corpus petition that still bore the name of an earlier client and submitted a brief admitting that his client must lose.

The Supreme Court is set to consider on Friday whether to hear Mr. Gamboa’s case. Had his lawyer filed nothing and simply abandoned him, he would very likely be allowed another chance to make his case.

The question in Mr. Gamboa’s appeal is whether worthless legal work requires the same answer.

In a Supreme Court brief, Ken Paxton, the Texas attorney general, said that a client must “bear the cost of his federal attorney’s negligence.” That is indeed the general rule, though some have questioned whether it makes sense when the lawyer has been appointed by a judge rather than hired by a client.

Mr. Gamboa was convicted and sentenced to death in 2007 for two murders during a robbery at a bar in San Antonio. He maintains his innocence.

The lawyer, John J. Ritenour Jr., visited his client once before filing the habeas petition. Mr. Gamboa brought documents to the meeting that seemed to show that prosecutors had withheld evidence suggesting that another man had committed the killings, a potentially powerful claim.

Mr. Ritenour did not take the documents. Instead, Mr. Gamboa said in a sworn statement, “Mr. Ritenour told me that he had read the state court record in my case and believed I was guilty.”

Nearly a year later, Mr. Ritenour filed the petition, which was largely lifted from an earlier one, repeating typographical and grammatical mistakes. It still featured the name of another client, Obie Weathers. It was not signed by Mr. Gamboa, though that was a legal requirement, and it did not include any of the arguments Mr. Gamboa had asked him to pursue.

After lawyers for the state made short work of the petition, Mr. Ritenour filed an extraordinary reply brief that amounted to surrender.

“After considerable review and reflection,” he wrote, “petitioner concedes that his argument regarding each of his claims has been foreclosed under currently existing, adversely decided, precedent.”

Mr. Ritenour did not respond to requests for comment about the assertions in Mr. Gamboa’s Supreme Court brief, including that he had abandoned his client. But he filed a sworn statement in 2016 that appeared to concede the key points.

“I did not consult with Mr. Gamboa concerning the issues I did and did not include in the petition, nor about the contents of the reply brief,” he wrote. “Because I could find no nonfrivolous way to raise issues potentially requiring evidentiary support, I made another judgment call not to involve a second attorney, or to engage an investigator or other expert. Again, I understand others can and may take issue with that judgment call.”

His own investigation was limited. Shortly after he was appointed by a federal judge, he had a 10-minute phone call with a lawyer who had represented Mr. Gamboa in state court.

“That was the only investigation into the case that Ritenour ever conducted,” according to Mr. Gamboa’s petition seeking Supreme Court review.

Court records show that Mr. Ritenour was going through difficult times as he was handling Mr. Gamboa’s case, including an ailment that required hospitalization and caring for his wife, who was battling cancer. But he did not hire an investigator, retain expert witnesses or bring on other lawyers.

In his sworn statement, he said he was aware that this violated “the standards for federal habeas counsel in a death penalty case.”

A 1996 law, the Antiterrorism and Effective Death Penalty Act, put strict limits on challenges to state capital convictions in federal court. But it did give a death row inmate, as Justice Elena Kagan wrote in 2020 for seven members of the Supreme Court, “one fair opportunity to seek federal habeas relief from his conviction.”

After new lawyers agreed to represent Mr. Gamboa, they asked for permission to file another petition — a second bite at the apple that is ordinarily forbidden. Both the trial judge and an appeals court turned down the request.

“Troubling though Gamboa’s allegations of attorney abandonment may be,” a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit wrote in an unsigned opinion, Mr. Ritenour had wasted his client’s one shot in federal court.

Mr. Gamboa would have been better off had Mr. Ritenour done nothing. In a pair of decisions, in 2010 and 2012, the Supreme Court allowed death row inmates whose lawyers had missed deadlines entirely to pursue attempts to file belated petitions.

In urging the Supreme Court to deny review, Mr. Paxton wrote that Mr. Ritenour “continuously and ably represented Gamboa” and had not, like lawyers in the earlier cases, performed a “disappearing act.”

Mr. Gamboa’s new lawyers questioned that assertion.

“In the United States,” they wrote, “life should not be so cheap that a man may be executed because his court-appointed attorney abandoned him.”

In his sworn statement, Mr. Ritenour said he had been asked by new lawyers to “possibly confess to performing deficiently.”

But “upon reflection,” he wrote, “I concluded that I could not in good conscious do that.” He may have meant “in good conscience,” but that is not what he wrote.