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.

En banc 9th and 11th Circuits debate proper role of habeas in criminal cases

In our book, we argue that the primary purpose of habeas has never been case-specific error correction; instead, it’s about addressing the structural and institutional problems that produce such errors. And given its own structural limitations, habeas can’t serve as an effective mechanism for either correcting or preventing case-specific errors in criminal cases anyway. That’s why we propose a statutory change that would essentially mandate a more prudent approach. But some lower court judges continue to resist even the limitations that Congress and the Court have already imposed. Two recent en banc appellate decisions – one in the Ninth Circuit, and the other in the Eleventh Circuit – contain remarkably frank and robust discussions of this issue. 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 »

Controversy over mitigation -3rd Circuit sets aside Mumia Abu-Jamal’s death sentence; Supreme Court reverses 6th Circuit in Bobby v. Mitts

Within the past week, decisions were rendered in two prominent death penalty habeas corpus cases involving challenges to jury instructions and verdict forms dealing with mitigating evidence and mitigating factors:  the Mumia Abu-Jamal case in Pennsylvania and the Harry Mitts case in Ohio.  The two decisions seem unlikely to settle the controversy over mitigation that has existed ever since the Supreme Court’s ruling Mills v. Maryland (1988). Read more »

Isn’t a better response making habeas review more meaningful?

We are receiving many emails about the NYT Op Ed and ideas in the book, we will reproduce some of the more frequently asked questions here as posts along with responses


 Two responses:  (1) Any proposal to expand significantly the scope of habeas review, by removing existing barriers to habeas relief, or by providing government-funded defense lawyers to assist habeas petitioners, is a complete political non-starter.  (2) More importantly, even if we somehow managed to accomplish some of those things, habeas would still not serve as an effective mechanism for case-by-case error correction or deterrence of state courts, because – as we explain fully in the book – the structural problems that make habeas relief unavailable to almost all prisoners would still exist, which means that the habeas grant rate would still remain tiny (as, indeed, it was even during the 1960’s when many of the procedural barriers to habeas relief didn’t exist). – JH

See also these exchanges with defender and with Don Dripps, here – NK

How can you assume state courts get it right?

We are receiving many emails about the NYT Op Ed and ideas in the book, we will reproduce some of the more frequently asked questions here as posts along with responses. 


We don’t.  What we do know is that (1) every state today provides state judicial review procedures (i.e., appeal and post-conviction review) that are generally adequate to allow for litigation of federal constitutional claims, and (2) state judges today generally do not resist or refuse the application of federal constitutional law to state criminal cases simply because that law is federal law rather than state law.  These are the two specific problems that Justice Brennan explicitly identified in his 1961 Utah speech, and they are the problems that prompted the Supreme Court (led by Justice Brennan) to expand the scope of habeas review of state criminal cases in 1963, as we explain in the book.  The expansion of habeas in the 1960’s helped to solve these structural and institutional problems – even though non-capital habeas grant rates were never very high – by sending a message to state legislatures about the need to improve state judicial review procedures, and by also sending a message to state courts about the supremacy of federal law over state law. Read more »

Isn’t cost-benefit analysis dangerous and inappropriate?

We are receiving many emails about the NYT Op Ed and ideas in the book, we will reproduce some of the more frequently asked questions here as posts along with responses. 


You’re right to think that there should be more to this than just cost-benefit analysis, or numbers-driven logic. The fundamental values of our society, as expressed through the judiciary, must always define the minimum level of review that should be provided to every criminal defendant before they are subject to being fined, sent to prison, or executed for a crime. That’s a big part of what “due process” means. Read more »

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