Author Archives: Nancy King

More on Martinez v. Ryan

For an analysis of issues raised by Martinez as well as lower court developments, see the forthcoming discussion at :

“Topics addressed include the rationale for the Martinez decision; what constitutes an “initial review collateral proceeding”; the effect of the decision on Edwards v. Carpenter; measuring the effectiveness of post-conviction counsel after Martinez; what is a “substantial” claim of trial counsel ineffectiveness; and the application of Martinez to defaults during proceedings after the “initial review collateral proceeding. ” The discussion also includes arguments regarding extending Martinez to petitioners who decline representation in initial review collateral proceedings; to petitioners who retain counsel for those proceedings; and to petitioners who do not initiate such proceedings. Also examined are the possible adoption of a Martinez-like exception for the evidentiary limitations in Pinholster, the statute of limitations bar, or the successive petitions bar, as well as the possible extension of Martinez as an exception to the limitation on successive § 2255 applications and similar procedural barriers in state post-conviction proceedings”

Court Suprises in Martinez v. Ryan

[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. Read more »

Greene v. Fisher: law when state court decides is what matters

Justice Scalia, writing for a unanimous Court, reminded us today in Greene that

the purpose of AEDPA is to ensure that federal habeas relief functions as a “‘guard against extreme malfunctions in the state criminal justice systems,’” and not as a means of error correction.

(quoting Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 12–13) (quoting Jackson v. Virginia, 443 U. S. 307, 332,  n.5 (1979) (Stevens, J., concurring in judgment)).

Relying upon Pinholster, where the Court held that under Section 2254(d) federal courts could not disrupt state court decisions based on evidence that the state court didn’t have, the Court in Greene today held that federal courts must measure the decision of the state court against the federal law that was in place at the time the state court announced its decision.  Federal judges reviewing a state court decision under Section 2254(d) may not consider Supreme Court precedent that appeared only after that state court decision.   Read more »

Debating cause and prejudice in Maples

Presently over on SCOTUSblog there is a conversation about some of the issues raised in the Maples case argued yesterday in the Supreme Court.  Unlike many commentators, I am not confident the Court will be ruling in the petitioner’s favor in Maples.  Even if a majority of justices does decide to grant some sort of relief in Maples, a remand for instance, the issue there is not nearly as explosive as the one raised in Martinez. 

One observation about Maples - in the furor over sending a petitioner to his death before a federal court reviews the merits of his claim, it is easy to overlook the ripple effects of  any new definition of  ”cause.”  Federal courts routinely apply the Court’s “cause and prejudice” test not only in habeas cases - capital and non capital alike– but also in 2255 cases, and when evaluating whether to reach the merits of a claim “waived” under Federal Rule of Criminal Procedure 12.  State courts also adopt the Court’s definition of “cause” as a standard for reviewing unraised claims in their own courts.  Initially, the “cause and prejudice” test could have been based in concerns about “comity” and federalism, but it has expanded well beyond that context.

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: Read more »

Barring use of 2241 for sentencing challenge not suspension, 11th Circuit holds

Today in Gilbert v. United States the Eleventh Circuit in a divided en banc decision held that a federal prisoner who had previously filed an application for relief under Section 2255 could not use the “savings clause” to raise in a later habeas petition under Section 2241 his claim that he was erroneously sentenced as a career offender.    The majority opinion by Judge Carnes reasoned that the petitioner was not claiming that he had been convicted for conduct that did not constitute a crime, as in other savings clause cases.  The majority also noted that the case did not involve a sentence beyond the statutory maximum for the offense. Relying on Felker v. Turpin, the court also disagreed with the dissenting judges’ argument that interpreting the statute to prohibit habeas review in this situation violates the Suspension Clause. Read more »

Video of panel discussion: Barry Friedman, Judge William Pryor, Jr., discuss book

A link to a video recording of a panel discussion of the book  is now available.  On the video, Professor King summarizes the book (10 m), followed by critique from Professor Barry Friedman (about 20 m) and Hon. William Pryor, Jr. (about 20 m) , and brief comments from Professor Hoffmann.

Barry Friedman is Vice Dean and  Jacob D. Fuchsberg Professor of Law at NYU School of Law, a leading academic authority on constitutional theory and the federal courts.   Hon. William Pryor, Jr., is a judge on the United States Court of Appeals for the Eleventh Circuit.  Previously he was the Attorney General for the State of Alabama, from 1997 – 2004.

The event was held at the Vanderbilt Law School  on April 21, 2011.

At Huffingtonpost, more discussion

Andrea Lyon’s post on our Op Ed, along with my reply, at today, is here.

Letters re: Hoffmann & King NYT Op Ed Cling to Misconceptions

The New York Times has just posted a number of letters to the editor to be published in tomorrow’s Sunday paper, responding to our Op Ed last weekend.

Most of the concerns expressed in the letters are based on myths about habeas review that don’t stand up to scrutiny.  Federal habeas corpus is not functioning, and cannot function as a “system to redress wrongs” in individual state criminal cases.  Habeas relief comes so rarely and arbitrarily that it simply doesn’t do what the writers seem to believe it is doing.  It is comforting to hope that habeas review will correct and deter errors by state courts – but, as we have explained elsewhere on this blog, and more fully in the book, it is a false hope.  

Even worse, clinging to the broken and futile system of habeas review that we currently have may actually hurt the cause of justice more than it helps.   The endless piles of hopeless petitions siphon resources away from where they might actually do some good, and obscure the cases in which plausible claims of innocence really do deserve the full attention of the federal habeas courts.  Our proposal would actually make it easier for state prisoners with proof of actual innocence to gain that judicial attention and obtain relief.

One of the letters to the editor, however, went even further and created a brand new fiction about habeas review of state criminal cases.  That letter claimed that 0.4% of all state prisoners currently benefit from habeas, even though it was very clear from our Op Ed (as well as the 2007 Habeas Study that was hyperlinked twice in the Op Ed) that the grant rate of less than 0.4% measures the success rate of only those prisoners who actually file habeas petitions. The truth is, out of the millions of convicted state prisoners, the vast majority have no access to federal habeas corpus at all and never file a petition.  About 17,000 petitions are filed each year, which means that — in the entire United States — only an estimated 60-70 prisoners each year manage to secure any relief in the district courts. Moreover, that relief often consists of nothing more than another chance to be retried, resentenced, or file another round of appeal.  Hopefully most Times readers were able to “do the math” and realize how truly rare habeas relief is today.

More join the debate over reform

The debate about habeas review of state criminal judgments in noncapital cases continues, here and and here at habeascorpusblog, here, and at whitecollarcrimprofblog, here.

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