[update in later post, here]
In a 7:2 decision today, the Court in Martinez v. Ryan held that ineffective assistance of counsel during state post conviction proceedings can be cause for excusing procedural default of a claim of ineffective assistance of counsel at trial.
The Court originally agreed to consider whether a prisoner who claims that he was denied the effective assistance of counsel at trial has a constitutional right to an effective attorney in “collateral” (post-appeal) proceedings in state court in order to raise that claim for the first time. But today it didn’t answer that question. Rather than addressing the constitutional question about the scope of the right to counsel, it answered an “equitable” question about the scope of federal habeas corpus review.
The larger issue involved in the case is one the Court has been wrestling with ever since the 1950s when it expanded the reach of federal habeas corpus review to reach constitutional challenges by state prisoners. If a state prisoner attacks his conviction or sentence alleging unconstitutionally bad performance by his trial attorney and the state courts deny him relief because the prisoner did not follow established state rules for raising that claim, then generally federal judges cannot use the writ of habeas corpus to reach the claim and upset the prisoner’s conviction and sentence. Known as the defense of “procedural default,” this limit on federal habeas review rests on the idea state courts should be reviewing constitutional attacks by state prisoners, and that state courts have to be able to enforce their rules of procedure in order to do so.
There is an exception to this defense, however. A federal judge can look behind
the state court’s enforcement of its own rules if the prisoner provides “cause”
for not complying with those rules. Until today, it was no excuse that a prisoner
had no attorney (or only an incompetent attorney) in state collateral
proceedings to help him comply with state rules. After today’s decision, it is.
The Court today held that when state law requires a prisoner to use a collateral proceeding rather than direct appeal to raise a claim that his trial attorney was not constitutionally effective, his failure to comply with state rules will no longer bar a federal judge from granting habeas relief for that claim, if he had no attorney to help him in that collateral proceeding or the attorney he had was ineffective.
The Court reasoned that while there are good reasons for a state to require prisoners to wait until after appeal to raise challenges to the competence of their trial attorneys, ‘[b]y deliberately choosing to move trial-ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed, the State significantly diminishes prisoners’ ability to file such claims.” Reasoned the Court, “Allowing a federal habeas court to hear a claim of ineffective assistance of trial counsel when an attorney’s errors (or the absence of an attorney) caused a procedural default in an initial-review collateral proceeding acknowledges, as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim.”
But the Court added a curious requirement. Instead of holding that a federal judge must consider a prisoner’s claim that his trial lawyer messed up anytime a prisoner shows that he had no or inadequate help from an attorney to raise that claim, the Court stated that federal review also requires a prisoner to show that “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, . . . that the claim has some merit.” It is not clear what exactly this means – whether this is another way to phrase the existing requirement that the prisoner must show that he was “prejudiced” or whether it means something else.
The Court did not seem concerned about the burden its decision might place on the states, stating that the ruling “ought not to put a significant strain on state resources.” “Most jurisdictions have in place procedures to ensure counsel is appointed for substantial ineffective assistance claims,” Justice Kennedy wrote for the Court. “It is likely that most of the attorneys appointed by the courts are qualified to perform, and do perform, according to prevailing professional norms . . . .” The ruling, said Justice Kennedy, “permits a State to elect between appointing counsel in initial-review collateral proceedings” or litigating the claim of bad trial lawyering in federal court.
The Court claimed to be opening its new gateway to federal review only to bad-trial-counsel claims. This limitation would mean that prisoners will not be able to point to the lack of effective counsel in collateral state proceedings as an excuse for not raising other claims that they could not have raised on appeal, such as claims that the prosecutor withheld exculpatory evidence.
These assurances did not comfort Justice Scalia, joined by Justice Thomas, who issued a dissenting opinion. “[N]o one really believes that the newly announced ‘equitable’ rule will remain limited to ineffective-assistance-of-trial-counsel cases,” he wrote. The ruling, Justice Scalia argued, “calls into question the common state practice of not appointing counsel in all first collateral proceedings . . . .“ Citing a report from the Administrative Office of the United States Courts and our 2007 study, Justice Scalia argued that procedural default has been the states’ “principal escape route” from federal habeas review, and that now that “has been closed.”
The 2007 study found that ineffective assistance of counsel claims were raised in about half of all non-capital habeas petitions and more than three-quarters of all capital habeas petitions filed in federal court by state prisoners. “I guarantee that an assertion of ineffective assistance of trial counsel will be made in all capital cases from this date on . . . .” Justice Scalia wrote.
Justice Scalia also criticized the Court for “cast[ing] aside established” precedent and abandoning the “North Star” of the Court’s “excuse-for-cause jurisprudence,” namely, that states should not have to defend this sort of claim in federal court unless some factor “external” to the prisoner obstructed his ability to comply with state rules for raising the claim in state court. The failure of a state to appoint counsel for a prisoner in state collateral proceedings is not “external” to the prisoner unless the state has a constitutional obligation to provide that counsel, Justice Scalia argued. Finally, he objected that the Court’s ruling ignored the principles that motivated decades of decisions on this subject – respect for state court judgments and the importance of finality. Calling the Court’s decision a “free pass to federal habeas” he warned that it will make a “bad situation,” with habeas litigation stretching out for years and years, even “worse.”
The decision raises many questions; here are just a dozen that come to mind: (1) Will the limitation to IAC-at-trial claims withstand the inevitable pressure to expand the ruling to Brady, jury misconduct, and other late-discovered claims? (2) Will a substantial showing of IAC in state collateral review also excuse failures to raise claims of IAC on direct appeal? (3) Is the “some merit” test different than “prejudice”? (4) Could a State avoid the rule in Martinez by replacing a rule banning IAC claims on direct appeal with a rule making appellate review of such claims (with or without remand to the trial court for fact development) discretionary? (5) How will Martinez affect federal prisoners? (6) Will this mean more evidentiary hearings in federal court to demonstrate the ineffectiveness of counsel on collateral review? (7) Who will be able to take advantage of this “equitable” pronouncement – will it be retroactively applied? (8) Will Congress react by amending Section 2254(i)? (9) What if a state decides not to review ineffective assistance claims at all? (10) Will the ruling prompt more waivers of the right to bring ineffective assistance claims in state cases, and how will state courts handle those? (11) How will this affect the provision of defense services at the trial level where they are most needed – isn’t it more likely to harm state defendants by stretching thin resources even thinner? (12) What other changes to habeas review can we expect to see from the Court exercising its equitable authority?