By JK
Let’s turn the lights back on around here. . .
Recently, the Supreme Court granted cert. on a really interesting habeas issue: whether Martinez extends to ineffective assistance of appellate counsel claims. Case is called Davila v. Davis. SCOTUSblog page here.
Let’s start with a Martinez refresher: in 2012, the Supreme Court held in Martinez v. Ryan that the ineffective assistance of post-conviction counsel can represent cause to overcome a procedural default on an ineffective assistance of trial counsel claim. In other words, a petitioner can argue that his post-conviction counsel was ineffective for failing to raise or properly litigate a trial counsel ineffectiveness argument. If he can establish that, then he can obtain federal review of the trial counsel ineffectiveness claim (I am going to use IAC from here on out, it’s a lot of words to keep spelling out).
That’s the law now for trial IAC claims. But what about appellate IAC claims? Does the reasoning of Martinez extend to those types of claims?
I am going to steal this clever framing from a colleague, but in some ways it boils down to this: It’s the Ninth Circuit vs. the rest of the country on this one. The Ninth Circuit in a case called Nguyen v. Curry held that Martinez extends to these types of claims. Every other court has said no.
Based on the infamy of the Ninth Circuit, one may think that it is the kiss of death for the habeas petitioner to have the Ninth Circuit on his side. But I wouldn’t jump to that conclusion so quick here. The Ninth Circuit is not always wrong when it issues a pro-habeas petitioner interpretation on a procedural issue.* That is not inconsistent with recent Supreme Court law, as the Court has actually been relatively generous in expanding habeas procedural issues under the Roberts Court (e.g. Martinez, Maples, McQuiggin). Ironically, Martinez was out of the Ninth Circuit and the Supreme Court reversed the Ninth Circuit for failing to rule in favor of the habeas petitioner.
*Of course, they do still get reversed on their pro-habeas petitioner procedural rulings as well. This decision from last term is a good example.
Here’s why the petitioner could win. The logic of Martinez supports its extension to IAC appellate claims looked at in broad terms. One of the main motivating factors underlying Martinez was that the initial post-conviction review proceeding was the exclusive forum in which a petitioner was allowed to raise IAC trial claims. A petitioner should be provided with an attorney to assist him with raising that type of constitutional claim. Just like IAC trial claims, the initial review collateral proceeding is the first opportunity for a petitioner to raise an IAC appellate counsel claim. Significantly, Justice Scalia in his dissent in Martinez acknowledged that the holding of Martinez would obviously apply to IAC appellate counsel claims. He went so far as saying that the majority’s assurance that the holding was limited to the issues before it “insults the reader’s intelligence.”
But let me also advocate for the devil here.** Is there something different between these two types of claims? There is an argument to be made that there is. As Justice Kennedy reasoned in Martinez, IAC trial claims often require investigation into matters outside the trial record. Something that a habeas petitioner cannot do while incarcerated. But appellate counsel claims don’t require that type of investigation. Appellate issues are based exclusively on the lower court record. Outside of having legal experience, wisdom, and skill, habeas petitioners do in theory have the issues at their disposal while incarcerated (assuming they have the trial record with them).
** No, I obviously do not believe the State is the devil. It’s a play on words on the expression “playing devil’s advocate.” [Insert winky face emoticon here]
But I don’t find that reasoning particularly persuasive. As I imply in that final sentence, habeas petitioners are not in a good position to raise these claims. They don’t generally have the legal ability to identify appellate issues. They are incarcerated. They don’t have a lot of access to legal materials. They don’t often have complete records from their trial. Yet, criminal defendants have the constitutional right to the effective assistance of appellate counsel (yes, spelled it out there, but it seemed appropriate). These claims can only be brought in the initial review collateral proceeding. Representation by counsel in those proceedings to raise a violation of a guaranteed constitutional right seems pretty vital to me.
Martinez was 7 to 2. If the court remains at 8, it will take a shift of four members of the majority for the Court to reject the Martinez extension. But I guess it is more complicated than that. If the habeas petitioner loses three, then it is 4 to 4. The individual petitioner will lose in that situation, but at least petitioners in the Ninth Circuit would still be happy. And the issue would remain undecided.
If the Court gets back up to 9, the numbers game would change a little. Assuming the new judge votes like Scalia, that will add another judge to the anti-Martinez extension crew. In that situation, a three-judge shift will mean a lose for all habeas petitioners.
So it really boils down to whether the habeas petitioner will lose all of Roberts, Kennedy, and Alito. Only needs to hold on to one for the win here.*
* Yes, I am assuming Ginsburg, Kagan, Breyer, and Sotomayor are reliable votes here.
If you want to read more about this, I enjoyed this write up about the case.