Ineffective Assistance of Counsel

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 »

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 »

At Huffingtonpost, more discussion

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

Beyond Cullen v. Pinholster: When new evidence amounts to a “new claim”

The fact-intensive dispute in the recent decision in Cullen v. Pinholster over the application of Strickland to capital sentencing representation breaks little new ground.  The decision is consistent with the Court’s view that “‘[s]urmounting Strickland’s high bar is never an easy task.’” Richter.  The more interesting aspects of the decision involve its consequences for evidentiary hearings and innocence claims by 2254 petitioners.  Read more »

Harrington v. Richter: The Court is Ready for More Prudent Use of Habeas, is Congress?

In Harrington v. Richter, the Court reversed a Ninth Circuit decision finding unreasonable the state court’s rejection of Richter’s ineffective assistance of counsel claim.  Along the way, the Court (with Justice Ginsberg concurring in the judgment and Justice Kagan not participating) had plenty to say about the future of habeas corpus review. 

1)  More habeas review is not always better.  

“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance.”

As this ringing introduction by Justice Kennedy recognizes, failure to exercise prudence in using the writ is corrosive and harmful.  The resources of the federal courts are not infinite Read more »