March 20, 2012
Via narrow 7-2 ruling for defendant, SCOTUS dodges Sixth Amendment issue in Martinez v. Ryan
In an apparent (and reasonable?) effort to avoid a major constitutional ruling concerning the Sixth Amendment right to counsel, Justice Kennedy today, writing for seven Justices in Martinez v. Ryan (opinion here), adopts "a more narrow, but still dispositive" rule that a "federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding." For a variety of reasons, I think this way of resolving Martinez v. Ryan is designed to try to ensure the ruling ends up not being especially consequential.
While others can debate the wisdom of this ruling and the effort to dodge a big Sixth Amendment pronouncement, I will highlight the first paragraphs of the dissent written by Justice Scalia (and joined by Justice Thomas). In addition to sumarizing what the majority does, the dissent laments where this ruling might lead:
Let me get this straight: Out of concern for the values of federalism; to preserve the ability of our States to provide prompt justice; and in light of our longstanding jurisprudence holding that there is no constitutional right to counsel in state collateral review; the Court, in what it portrays as an admirable exercise of judicial restraint, abstains from holding that there is a constitutional right to counsel in initial-review state habeas. After all, that would have meant, in a case such as the one before us, that failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, would constitute cause for excusing procedural default. See Strickland v. Washington, 466 U. S. 668 (1984). Instead of taking that radical step, the Court holds that, for equitable reasons, in a case such as the one before us, failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, constitutes cause for excusing proceduraldefault. The result, of course, is precisely the same.
Ah, but perhaps the explanation of why the Court’s action today amounts to praiseworthy self-restraint is this:It pronounces this excuse from the usual rule of procedural default only in initial-review state habeas raising an ineffective-assistance-of-trial-counsel claim. But it could have limited its invention of a new constitutional right to collateral-review counsel in precisely the same fashion -- and with precisely the same consequences. Moreover, no one really believes that the newly announced “equitable” rule will remain limited to ineffective-assistance-of-trial counsel cases. There is not a dime’s worth of difference in principle between those cases and many other cases in which initial state habeas will be the first opportunity fora particular claim to be raised: claims of “newly discovered” prosecutorial misconduct, for example, see Brady v. Maryland, 373 U. S. 83 (1963), claims based on “newly discovered” exculpatory evidence or “newly discovered” impeachment of prosecutorial witnesses, and claims asserting ineffective assistance of appellate counsel. The Court’s soothing assertion, ante, at 14, that its holding “addresses only the constitutional claims presented in this case,” insults the reader’s intelligence.
UPDATE: Over at her Habeas book blog, Professor Nancy King has this extraordinary post on the Martinez ruling which concludes with these notable queries:
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?
March 20, 2012 at 10:30 AM | Permalink
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When it comes to "insulting," Scalia prefers to be more blunt.
Posted by: Joe | Mar 20, 2012 12:52:04 PM
The states, of course, on cases where federal habeas is over, can safely ignore this decision. Thus, those ridiculous stays can be dissolved. As for habeas, where habeas is over, the condemned shouldn't get to reopen habeas.
The Ninth Circuit is going to abuse this decision.
Posted by: federalist | Mar 20, 2012 12:53:46 PM
so in english after they stated you do have a right to effective assistance of council....Once they were really faced with a case they would have toss becsuse the individual did NOT get it. it's WOAH! not so fast!
so they chickend out AGAIN!
Posted by: rodsmith | Mar 20, 2012 1:08:16 PM
There are two 10,000 lbs elephants in the room in this case. Scalia called one out.
First, although I agree with the majority, I do believe Scalia is correct about the practical effects of the majority's holding on state criminal cases, notwithstanding the majority's assurances to the contrary. States will now, as a practical (rather than constitutional) matter, appoint counsel in initial-review collateral proceedings. And what principled reason is there to limit the majority's holding to only initial review IAC claims, instead of all "initial review" claims (i.e. claims that could not be brought on direct appeal)?
Second, and both the majority and dissent entirely ignore this elephant, is what impact today's opinion has on federal cases under "initial-review" collateral proceedings? The controlling precedent of most (all?) circuits prevent an ineffective assistance claim from being raised on direct review. As in Arizona, in other words, federal courts require ineffective assistance of trial counsel claims to be raised in initial-review collateral proceedings. Sooner or later, the Court is going to have to address whether (and how) today's opinion impacts appointing counsel in such proceedings.
In sum, it is quite apparent that the majority was trying to write a narrow holding by describing the case as being about a) excusing procedural default, b) in IAC claims. While I believe the correct outcome was reached, the majority's approach may raise more questions than it answers.
Posted by: DEJ | Mar 20, 2012 1:31:19 PM
What if appointed habeas counsel believes they have a better shot on the merits of an ineffective assistance claim in federal court rather than state court? Could they intentionally not raise it during state collateral proceedings to get de novo review and they are now not procedurally defaulted from doing so?
Posted by: anon | Mar 20, 2012 1:51:12 PM
Several questions remain unanswered, and states which want deferential review have to figure out the answer.
What is pretty much answered by this case is that states (the majority of them) who push issues like ineffectiveness of trial counsel to collateral review now have to provide counsel for that stage (and many of them do).
What is not answered by this case (but will be the next claim) is what about providing counsel for challenges to the effective assistance of appellate/collateral review counsel. If the right to counsel is limited to first stage review, then this decision merely requires a state to also offer a second stage collateral review prior to federal proceedings. The fear is that some future court will decide that second stage review is the first stage for reviewing claims of ineffective assistance of first state (direct appeal/first collateral review) and extend the right ad infinitum.
Posted by: TMM | Mar 20, 2012 2:18:10 PM