By Alexandr Satanovsky
When a Strickland-deficient state postconviction lawyer fails to raise a substantial ineffective assistance of (trial) counsel ("IATC") claim, the federal courts will excuse the default in habeas. But what if the state lawyer does fairly present the IATC claim, but loses after shamelessly failing to develop the factual basis? This is the "Martinez v. Pinholster" tension, which JK discussed a few months ago, now percolating in some federal courts of appeal.
The eventual Supreme Court resolution of this conflict seems pretty inevitable, and some tea leaves may appear very soon: This very question* is presented in Gallow v. Cooper, a noncapital, state-on-bottom cert. petition out of the Fifth Circuit. It is noteworthy because it is now scheduled for its fifth cert. conference, which is very rare and typically indicative of something brewing.
* Gallow presents the following question: "Can a federal court consider new evidence to support a state prisoner’s application for habeas relief under 28 U.S.C. §2254(d), when the state court record was not developed as a result of incompetent and likely conflicted post conviction counsel[?]"
Curiously, neither the parties' briefing nor the opinion below engage the biggest knot in the Martinez-Pinholster dispute: whether the Supreme Court has the authority to carve out common-law equitable exceptions to statutes, and if so, whether it can recognize an exception that was not in the common law at the time the statute was enacted, and whether it can be predicated merely on an attorney's deficient performance, as opposed to a traditional and more compelling basis like miscarriage of justice.
The difference is with the nature of the limitation that the prisoner seeks to overcome: procedural on one hand, and the §2254(d) inquiry on the other. The former is a court-made common law doctrine intended to promote comity and respect valid state procedural rules. The latter is a statutory command, which significantly limits the Supreme Court's authority to craft exceptions. The closest authority discussing Court-made exceptions to a statutory command are Holland v. Florida and McQuiggin v. Perkins, both concerning the Congress-enacted statute of limitations. In each case, the Court justified its exception (equittible tolling for extraordinary circumstances, and actual innocence, respectively) by noting that it was established in the judicial common law against which Congress drafted the statute; if Congress sought to abrogate the equitable exception, it would have been more explicit. In this case, the problem is different: the Martinez exception neither implicates a miscarriage of justice nor was established at the time Congress drafted §2254(d).
I don't think anyone would disagree that, as a matter of policy and equity, a petitioner whose deficient state collateral lawyer failed to raise an IATC claim should be treated differently from one whose lawyer raised (and lost) an inexcusably maldeveloped claim. Both are victims of their respective state lawyers' incompetence, but for the former Martinez will provide the windfall of de novo federal review, while for the latter, because of a state court ruling on the merits, there is neither de novo federal review nor even deferential review aided by more facts.
Perhaps there is a better way for the Supreme Court to resolve this inequity without mechanically recognizing an "exception" per Martinez. Martinez works against a judicially-crafted bar (procedural default), but if recent cases are any indication, it will not fare so well against a statutory limit (§2254(d), as interpreted by Pinholster).
To harmonize the equities of Pinholster and Martinez, the Court could provide more clarification to the amorphous language in §2254(d)(1)-(2): What exactly is a "claim adjudicated on the merits"? What can make for an "unreasonable" determination of the facts, or an "unreasonable" application of Strickland? For example, the Court could hold that it is "ureasonable" for a state court to evalute the the merits of a fact-intensive IATC claim on poorly developed pleadings. Alternatively, as alluded to in Pinholster, the Court could clarify what constitutes a "claim" under §2254(d), and hold that whenever the factual grounds in a federal pleading are different enough to create a substantial chance of being outcome-determinative compared to facts pled in state court, then the federal pleading is a new claim, to be analyzed under Martinez. Ultimately, even if the equitable principles embodied in Martinez may not justify a court-decreed exception to a clear statutory provision, they are quite persuasive for a court's interpretion of an ambiguous statutory provision.
Or, of course, there is one solution that is the simplest of all: the Court could revisit what it chose to punt in Martinez, and hold that prisoners have a federal constitutional right to counsel in all initial-review proceedings. This approach, plainly it seems to me, would compel that §2254(d) limits be bypassed upon a showing that a constitutional violation tainted the state court's adjudication.
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So what is the deal with Gallow? My prediction is that the Court will deny certiorari, possibly with dissenting and concurring opinions. This is a prisoner's cert. petition, and there is absolutely no chance of a summary reversal that would necessarily alter the Pinholster'd §2254(d) review. The Martinez-Pinholster resolution will come eventually, likely after more courts of appeals flesh out these difficult issues, which the Fifth Circuit surely did not in Gallow.