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June 26, 2017

SCOTUS rules IAC of appellate counsel in state postconviction proceedings does not excuse procedural default

Resolving a technical and important issue, the US Supreme Court this morning in Davila v. Davis, No. 16-6219 (S. Ct. June 26, 2017) (available here), refused to extend some inmate-friendly habeas jurisprudence. The opinion for the Court in the 5-4 ruling was authored by Justice Thomas and it begins this way:

Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground.  A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error.  An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. See Coleman v. Thompson, 501 U. S. 722 (1991).

In Martinez v. Ryan, 566 U. S. 1 (2012), and Trevino v. Thaler, 569 U. S. 413 (2013), this Court announced a narrow exception to Coleman’s general rule.  That exception treats ineffective assistance by a prisoner’s state postconviction counsel as cause to overcome the default of a single claim — ineffective assistance of trial counsel — in a single context — where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal. The question in this case is whether we should extend that exception to allow federal courts to consider a different kind of defaulted claim — ineffective assistance of appellate counsel. We decline to do so.

The dissent authored by Justice Breyer and joined by the other more liberal justces begins this way:

As the Court explains, normally a federal habeas court cannot hear a state prisoner’s claim that his trial lawyer was, constitutionally speaking, “ineffective” if the prisoner failed to assert that claim in state court at the appropriate time, that is, if he procedurally defaulted the claim.  See ante, at 1 (the prisoner’s failure to raise his federal claim at the initial-review state collateral proceeding amounts to an “adequate and independent state procedural ground” for denying habeas relief).

But there are equitable exceptions. In Martinez v. Ryan, 566 U. S. 1 (2012), and later in Trevino v. Thaler, 569 U. S. 413 (2013), we held that, despite the presence of a procedural default, a federal court can nonetheless hear a prisoner’s claim that his trial counsel was ineffective, where (1) the framework of state procedural law “makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,” id., at 429; (2) in the state “‘initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective,’” ibid. (quoting Martinez, 566 U. S., at 17); and (3) “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit,” id., at 14.

In my view, this same exception (with the same qualifications) should apply when a prisoner raises a constitutional claim of ineffective assistance of appellate counsel. See, e.g., Evitts v. Lucey, 469 U. S. 387, 396 (1985) (Constitution guarantees a defendant an effective appellate counsel, just as it guarantees a defendant an effective trial counsel).

June 26, 2017 at 10:21 AM | Permalink


This bears out my earlier comment when he was first confirmed that Gorsuch is likely to be unfriendly to defendants when it comes to procedural matters but will be more defendant friendly when it comes to some substantive matters.

Posted by: Daniel | Jun 26, 2017 11:20:34 AM

The title of the article, Doug, overstates the holding in the case. The Court refused to extend Martinez to claims of post conviction IAC where post conviction counsel failed to raise a claim of appellate ineffectiveness. Failure of post conviction counsel to raise "trial" ineffectiveness issues remain cognizable within the Martinez framework.

Posted by: Brandon Sample | Jun 26, 2017 11:26:41 AM

Procedure opens up room for defendants to get substantive relief.

Posted by: Joe | Jun 26, 2017 11:40:23 AM

Thanks, Brandon, I think I have tweaked the title of this post sufficiently for clarity. But clarity in the habeas space is always challenge for me.

Posted by: Doug B. | Jun 26, 2017 12:53:16 PM

The reasoning in this case by Justice Thomas seems terribly unsound, but it appears that the conservative majority is not concerned about logic if it will get more defendants executed.

Posted by: ohwilleke | Jun 27, 2017 7:09:02 PM

All reasoning in habeas cases on procedural default and exceptions to procedural default can be characterized as unsound because most of the rules are two or three levels removed from the statutory text.

You begin with a statute that says that: 1) claims have to be raised in a state forum first if one is available; and 2) gives deference to any ruling on the merits by the state courts.

This statute, however, contains a potential loophole. State courts typically impose time limits on raising a claim. If a defendant misses the time limit, there is no state forum available. As such, the inmate could then file the claim directly in federal court and receive de novo review. Giving effect to this loophole would potentially encourage sandbagging -- particularly if the local federal courts take a more pro-defendant position on a certain issue than the state court does. To prevent such sandbagging, the Supreme Court created an equitable rule providing that, if the inmate fails to raise the claim properly in state court, then he has "procedurally defaulted" the claim and will not be allowed to raise it in federal court. Arguably, this rule is a logical extension of the statute, but it not necessarily compelled by the statutory language.

Having implied this rule of procedural default, the Supreme Court then found itself faced with circumstances when this rule seemed to be too harsh. In response, it created equitable exceptions to this rule. These exceptions have no statutory basis. Instead, they are -- as is typical of equitable rules -- what feels right to the majority of the court at any given time.

One of these exceptions is Martinez. The majority in Martinez explained why -- despite the fact that prior cases did not support the exception requested by that inmate -- the Supreme Court felt that ineffective assistance of trial counsel claims justified the special rule. Reasonable people can -- and many do -- disagree with the holding in Martinez. In Davilla, the Supreme Court found that there were enough differences between ineffective assistance of trial counsel and ineffective assistance of appellate counsel. Reasonable people can disagree with whether those differences are enough to justify a different rule for such claims. However, the majority in Davilla is no more or less unsound than the majority in Martinez. Both are making up rules regarding what they perceive as "fair."

The bottom line is that the statute creates a preference for raising claims in state court. In theory, states can choose to add an additional level of collateral review to consider the effectiveness of counsel in the prior stages -- trial, direct appeal, first level collateral review of trial/appellate counsel; second level collateral review of first level counsel, etc. At some point, a state has provided enough opportunities to raise the ultimate underlying claim that it is not "fair" to allow an inmate to bypass state court. There is no legal justification for drawing the line at a specific point, but there is a need to draw a line.

Posted by: tmm | Jun 28, 2017 10:49:26 AM

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