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June 6, 2011

Effective discussion on ineffectiveness claim at heart of Martinez habeas SCOTUS grant

As noted in this post from earlier today, the Supreme Court this morning granted cert on a potentially important state habeas case, Martinez v. Ryan.  Nancy King has this great post explaining the basics and the backstory of the grant in Martinez at her habeasbook.com blog.  Here are excerpts:

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 opinion [below (available here) ruled against the habeas defendant]: "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."....

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.

June 6, 2011 at 05:35 PM | Permalink


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Seems to me the habeas prisoner has some serious obstacles to relief:

There's this:

"(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."

It's of course easy to say that well the "ground" for relief really is the ineffectiveness of the rep at trial and the ineffective rep during post-conviction proceedings is really just a way-station to the ground that ineffectiveness at trial. The problem is that renders the statute meaningless. Ultimately, there is simply no instance where ineffectiveness in post-conviction proceedings wouldn't be a way-station to overcoming the bar. And since we presume that Congress didn't intend to enact a nullity. Plus, it's pretty hard to argue that the word ground isn't being read in an extremely tight-fisted fashion.

The other problem is that a necessary adjunct to the rule argued by Gonzalez is that the state would be required to provide state-funded counsel for every criminal for at least one round of post-conviction relief. Since the Court has held that there is no constitutional right to post-conviction relief, this would be a stretch.

Teague. Can't create new rules on habeas. This would be a new rule.

Plus, it's difficult to see how the state court judgment was an unreasonable application of the law as set forth by the Supreme Court under 2254(d).

Finally, IIRC, the Supreme Court itself has endorsed the "raise ineffective rep on PCR" procedure.

Posted by: federalist | Jun 6, 2011 9:00:25 PM

what about this argument?

It is clearly established federal constitutional law that the due process clause applies to state post conviction proceedings, Pennsylvania v Finley. The Sixth Amendment right to effective assistance of counsel is applicable against the states via the due process clause. So, the process that is due includes the right to be represented at postconviction by a lawyer who knows what he or she is doing>

All suggestions welcome since I am currently drafting a postconviction motion arguing that the defendant's appointed postconviction counsel, in violation of the due process clause, had no clue what he was doing, as well as possessing a conflict of interest.


Posted by: bruce cunningham | Jun 6, 2011 11:51:58 PM


The 2254(i) argument is irrelevant as the right to effective trial counsel flows from the Sixth Amendment. Even if you construe it so as to bar relief(and you do not gave to, for example it clearly bars a bare claim of IAC on state post conviction without am accompanying claim of IAC at trial) it doesn't matter, the Constitution trumps inconsistent statutes.

Your Teague argument fails because the prohibition on new rules is not absolute. There is an exception for watershed rules of criminal procedure. This case would very arguably give such s rule.

The Sixth Amendment and the two cases on which Martinez principally relies - Douglas v California and Halbert v Michigan were established at the time of the state court decision. 2254(d) is therefore no bar to relief.

Posted by: Jsmith | Jun 7, 2011 3:33:32 AM

Jsmith, perhaps you should read a little more carefully. Remember, I said obstacles, which theoretically may be overcome. I am fully aware of the Court's ability to announce watershed rules.

As for the statute/constitutional issue, youre all wet on that one. Congress is free to limit habeas remedies. And I think you miss the point on 2254(i). IAC on post-conviction standing alone isn't enough to release a guy--you have to show how the criminal judgment itself was constitutionally infirm, thus in order to give (i) bite, it has to be construed to bar these claims. It's possible to argue that you could have free-standing innocence claims botched by post-conviction counsel, but that's a pretty rare instance.

The problem with Douglas and Halbert for you is that the Court has explicitly stated that there is no right to effective counsel in the post-conviction stage.

Posted by: federalist | Jun 7, 2011 8:38:06 AM

"Seems to me the habeas prisoner has some serious obstacles to relief."

As opposed to the average post-AEDPA petitioner's walk in the park.

Posted by: Michael Drake | Jun 8, 2011 12:25:00 PM

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