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?