Martinez v. Ryan – is there right to counsel in state pcr for IAC claim?


In Martinez v. Ryan, No. 10-1001, the Supreme Court today agreed to consider the following question:  ”Does a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, have a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim?” 

The Ninth Circuit panel, in Martinez v. Schriro, 623 F.3d. 731 (2010), explained the procedings before the petitioner filed his habeas petition in federal court:

Martinez is serving two consecutive terms of 35 years to life, following his conviction for wo counts of sexual conduct with a person under the age of fifteen. With the assistance of state-appointed counsel, Martinez pursued a direct appeal of his conviction. The Arizona Court of Appeals affirmed Martinez’ conviction, and the Arizona Supreme Court denied review. On direct appeal, Martinez raised issues that are not pertinent to our review of his federal habeas petition.

In May 2002, during the pendency of his direct appeal, Martinez’ state-appointed appellate counsel initiated an Arizona post-conviction relief proceeding on his behalf,  pursuant to Arizona Rule of Criminal Procedure 32.4.a, pursuant to which a convicted defendant commences collateral review by filing a “Notice of Post-Conviction Relief.” The defendant’s claims are to be stated in a subsequent “petition.” See Ariz. R.Crim. Pro. 32.4.c(2), 32.5; Ariz. R.Crim. Pro. Form 24(b). Martinez asserts that his counsel filed the Notice of Post-Conviction Relief, thereby initiating Rule 32 post-conviction relief proceedings, without prior notice to him and without his authorization.

Martinez’ counsel thereafter filed a statement in the Rule 32 action asserting that she had “reviewed the transcripts and trial file and [could] find no colorable claims . . . In this same statement, counsel requested that the court grant Martinez 45 days in which to file a pro se petition in support of post-conviction relief. Martinez alleges that his counsel filed this statement without prior notice to him and without his consent. He alleges that his counsel also failed to advise him that he needed to file a pro se petition. Martinez alleges that he did not file a petition because his counsel “failed effectively to inform Petitioner that he needed to file his own petition.” On April 28, 2003, after time had expired for Martinez to file a petition, the trial court dismissed the Rule 32 action for post-conviction relief.

On October 18, 2004, represented by new counsel, Martinez filed a second “Notice of Post-Conviction Relief” in Arizona Superior Court. Martinez filed a timely supporting petition on February 7, 2005. This petition alleged that Martinez’ trial counsel was ineffective in several respects, amounting to ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment constitutional rights.

The Arizona Superior Court dismissed Martinez’ second action for post-conviction relief as “precluded” under Arizona Rule of Criminal Procedure 32.2.a and also as without merit. Arizona Rule of Criminal Procedure 32.2. a(3) precludes a defendant from receiving relief based upon any ground that, inter alia, “has been waived at trial, on appeal, or in any previous collateral proceeding.” In effect, the Arizona Superior Court deemed Martinez’ claims to be procedurally defaulted because he had failed to raise them in his first Rule 32 action for post-conviction relief. Martinez sought review in the Arizona Court of Appeals. That court granted review, but denied relief to Martinez on the basis that his claims were precluded. Martinez sought further review by the Arizona Supreme Court, which denied review without opinion.

 Having exhausted the avenues of relief available in state court, Martinez turned to the federal court. On April 24, 2008, he filed the present action, petitioning for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241(a) and 2254(a). Martinez’ federal petition again asserted an ineffective-assistance-of-trial-counsel claim. The district court denied Martinez’ petition as procedurally defaulted. The district court issued a certificate of appealability, however, with respect to two related issues: “1) whether Arizona’s procedural bar, as applied to this case, is an adequate and independent state law ground for denying relief; [and] 2) whether Petitioner has shown cause to excuse his procedural default.” . . . .

The Ninth Circuit opinion continued:

We conclude that there is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constitute the first tier of review for an ineffective assistance of counsel claim.

In this case, Martinez seeks to extend his right to counsel to collateral proceedings. But the Court has never recognized a right to counsel in collateral review. Moreover, the Court has never extended the right to counsel beyond a defendant’s first appeal. Beginning with Douglas, the Court recognized that an indigent criminal defendant has the right to the assistance of appointed counsel only “with the first appeal, granted as a matter of right … from a criminal conviction.” 372 U.S. at 356, 83 S.Ct. 814. The Court has repeatedly declined to extend the right to counsel beyond a criminal defendant’s first appeal of his conviction. In Ross, the Court refused to extend a right to counsel to second-tier or certiorari review. 417 U.S. at 615-17, 94 S.Ct. 2437. And in Finley, the Court declined to recognize a constitutional right to counsel in collateral proceedings, observing that “[o]ur cases establish that the right to appointed counsel extends to the first appeal of right, and no further.” 481 U.S. at 555, 107 S.Ct. 1990.

A general right to counsel on collateral review cannot be extrapolated from Halbert and Douglas. The more difficult question, however, is whether collateral review might constitute the “first tier” of review for a petitioner’s ineffective-assistance-of-trial-counsel claim, and thus be sufficient to give rise to a right to counsel. That is, if collateral review entails a determination on the merits of an ineffective assistance of counsel claim, can collateral review represent the first opportunity for a criminal defendant to obtain review of his conviction, such that Martinez is similarly situated to a defendant pursuing his first appeal as of right? We now turn to this important question. . . .

This case is more like Ross than Halbert. In Ross, the petitioner had already received direct review of his convictions, and had already received the assistance of counsel in connection with that first appeal. Likewise, here, Martinez has already received direct review of his conviction and received the assistance of counsel in connection with that appeal. In Halbert, by contrast, the petitioner sought the functional equivalent of direct review, the first appeal of his conviction. Even if collateral review presents the first tier of review for Martinez’ ineffective assistance of counsel claim, we conclude that Martinez’ action is not analogous to a direct appeal-or the first opportunity for him to obtain review of his conviction-so as to entitle him to effective counsel. We therefore conclude that Martinez’ case is not governed by Douglas and Halbert. . . .

Without a right to the appointment of counsel, there can be no right to the effective assistance of counsel. . . . Ineffective assistance of post-conviction counsel cannot provide cause to excuse procedural default. . . . Martinez’ claims are procedurally barred. 

The Petition for Certiorari argues:

“. . . an Arizona defendant pursuing his first opportunity for review of ineffective-assistance-of-trial-counsel claims (necessarily in a Rule 32 post-conviction relief proceeding) has a constitutional right to appointed counsel under Douglas and Halbert. That means that such a defendant also is entitled to constitutionally effective assistance of counsel on such first-tier review. . . .  That means that such a defendant also is entitled to constitutionally effective assistance of counsel on such first-tier review. Even if the purely procedural ground for the Arizona Court of Appeals’ decision in this case had been adequate and independent, there would be cause and prejudice to excuse the procedural default if Petitioner could show that first post-conviction counsel was unconstitutionally ineffective.” 

This case raises several important and interesting issues – Apart from the merits, does Teague limit a decision holding there is a constitutional right to the effective assistance of counsel on state post-conviction review in this situation?  More to come.

SCOTUS blog has links hereBrief in Opposition here

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One Response to Martinez v. Ryan – is there right to counsel in state pcr for IAC claim?

  1. If there is no right to an effective post-conviction counsel, then how, in a system that forbids allegations of ineffective assistance on direct appeal (as many states do), can a defendant ensure he has had an adequate opportunity to assert his rights and guarantee the fundamental fairness that allows us all some assurance of correct convictions.

    To do otherwise in the interest of deterring frivolous claims is short sighted. It is true that more post-conviction writs will be filed if the right is recognized in this context, but frivolous writs already flood courts on other grounds and isn’t that worth the cost rather than denying meritorious claims? Isn’t that the way our system is supposed to tip?

    Does anyone really believe that it is impossible for appellate counsel to be ineffective?

    Why is this debated as a difficult question that required a granting of Cert? What am I missing?

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