Habeas Corpus Blog

Extending Martinez

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.

Habeas Corpus - Pending Second Circuit Cases Page

I have reinstated a case to the Pending Second Circuit Cases page.  I originally removed it after petitioner did not file a timely notice of appeal.  Apparently, that issue was resolved and the appeal went forward.  But then the Second Circuit dismissed the appeal based on petitioner's failure to file a COA.  Of course, the problem with that is that DJ granted a COA.  Now, petitioner apparently has cured this error (to the satisfaction of the Second Circuit).  As a result, the appeal has been reinstated.  And it has been put back on the Pending Second Circuit Cases page.

Details below:

Blalock v. Fisher

• Lower Ct. Info: 04-CV-2252, 2010 WL 2891185 (SDNY July 12, 2010) (LAP) (RLE)
• Status: No Notice of Appeal filed
• In Circuit: District Court COA
• Issues:  IAAC based on counsel's failure to raise a Batson claim

Habeas Corpus - Ramchair Epilogue - Now It's Over

While preparing the Weekly Review, I came across what should be the final decision in the Ramchair case.  Since I love the case so much, I wanted to give it its own post.

When we left off on the Ramchair case, the final chapter had been written -- the Second Circuit had affirmed the DJ's conditional grant of habeas corpus on the grounds of ineffective assistance of appellate counsel.  A conditional grant is where the court says something like the State must release petitioner if it does not retry him within 60 days. 

What happens, though, if the State doesn't actually retry the petitioner in the time period set forth in the conditional grant?  For Ramchair, it means that the conditional grant gets converted to an unconditional grant and the State is barred from retrying him.  The decision is located at 2010 WL 2869503.

Follow me below the fold for "Epilogue - Now It's Over" . . .

Habeas Corpus - Racky Ramchair X - The Final Chapter

I know, the title line sounds a lot like the title to a horror film.  Maybe I should have called this post "Racky Ramchair X- Dream Warrior" or "Racky Ramchair X - Racky's Revenge."

It has been a few weeks, but the Second Circuit's decision in Ramchair capped off what could have been the Best Habeas Week Ever.  One reason for that is how much I have enjoyed the Continuing Saga of Racky Ramchair.

For the background of the case, you can check out those last two links.  Here's as brief a summary as I can offer: A long time ago in a courthouse not so far away, Judge Gleeson indicated that he wanted to grant habeas relief to Ramchair on IAAC grounds based on appellate counsel's failure to raise a tricky little fair trial point.  Because the claim had not yet been raised in state court, he gave Ramchair the chance to pursue his state remedies.  The case went back to state court and it went all the way up to the New York State Court of Appeals.  That court concluded that counsel was not ineffective since her performance as a whole wasn't so horrible.  The reasoning can be summed up as: She filed a brief, didn't she?  Gleeson took the case back and granted habeas concluding that the Court of Appeals decision was unreasonable and ordered a new trial.  The Second Circuit vacated the grant, telling Gleeson that he should have held a hearing first and he must explain why he ordered a new trial as opposed to a new appeal.  Gleeson took up the court's offer, held a hearing, and, once again, granted habeas.  He explained that he ordered a new trial because the New York appellate courts had made their opinion known about their view of the issue and Ramchair should not wait any longer for a new trial.

Now, the Second Circuit has affirmed the habeas grant.

Follow me below the fold for "Chapter X - The Final Chapter"

Habeas Corpus - Ramchair In the News

"Panel Upholds Habeas Based on Appellate Ineffective Assistance"

That's the headline for today's article in the New York Law Journal about Ramchair (mentioned here).

Here are the opening paragraphs:

A robbery defendant whose appellate counsel failed to make a critical argument on appeal was rightly granted a writ of habeas corpus, the 2nd U.S. Circuit Court of Appeals has ruled.

The circuit said the law on ineffective assistance of counsel was incorrectly applied when the New York Court of Appeals said it might have been "reasonable" strategy for an appellate lawyer to refrain from arguing defendant Racky Ramchair had deserved a mistrial after his conviction.

Habeas Corpus - Best Habeas Week Ever?

At least in the Second Circuit.

First, there was the momentous opinion (in Besser v. Walsh) finding that the New York State persistent felony offender statute was unconstitutional.

Then, today, the Second Circuit affirmed the district court's habeas grant in one of my all-time favorite habeas cases - Ramchair v. Conway.  The Second Circuit agreed that petitioner had been deprived of his right to the effective assistance of appellate counsel.  The published decision is here.  Sack wrote the opinion (and he was also a member of the panel in Besser -- really big week for him).

Two huge habeas wins in a single week!  Does this count as the Best - Habeas - Week - Ever?  Just may be.

Next week, I'll give more details on what could be the final chapter of the Ramchair case (at least in federal court). 

I also promise to talk more about the Besser case.  I feel that I can speculate about it's potential impact without violating my DISCLOSURE/DISCLAIMER rules.  I'll also (try to) get to that next week.

But for now, I am just going to sit back and enjoy what was a real exciting week in habeasland.

[Edited for grammar]

Habeas Corpus - Ramchair Returns

I am happy to report that there is a new chapter in the fascinating saga of Racky Ramchair. And, just as with the prior chapters, it's a doozy. 

In the newest chapter, Judge Gleeson concludes, after a hearing, that appellate counsel was ineffective, habeas should be granted, and petitioner was entitled to a new trial.

I previously discussed this truly amazing habeas case in an extended prior post.

Here's a quick recap:  In 2005, Judge Gleeson issued a lengthy opinion stating that he was very much inclined to find that appellate counsel was ineffective for failing to argue on appeal that the trial court erred in denying Ramchair's request for a mistrial after the prosecutor  sandbagged the defense and introduced testimony about trial counsel's silence at the pre-trial lineup. Since the court denied counsel's request to testify and explain why he did not object (in fact, he was not ethically permitted to testify), the prosecutor was able to use the silence as a defense acknowledgment that the lineup was fair.  This was so prejudicial since identification was the only issue in the case and Judge Gleeson believed that there were several reasons to distrust the lineup identification.

But the IAAC claim was unexhausted, so Judge Gleeson sent it back to state court.  The state courts, which included a published opinion from the New York Court of Appeals, found that counsel was not ineffective for failing to raise the mistrial claim.

Judge Gleeson then granted habeas relief on this ground holding that the Court of Appeals' decision on this claim was unreasonable.  In fact, he believed that the Court of Appeals did not really even understand the nature of the claim.  Judge Gleeson ordered a new trial.

On appeal, the Second Circuit vacated the order granting habeas.  The court concluded that, before the district judge granted habeas on the IAAC ground, the judge should have held a hearing to allow counsel to explain her actions.  The court also stated that, if the district judge should decide to grant habeas in this case after remand, the judge should explain why a new trial was the appropriate remedy and not the typical relief for an IAAC claim, namely a new appeal.

That's where we left off.  The next chapter is below the fold . . .

Habeas Corpus - The Continuing Saga of Racky Ramchair

Last Tuesday, the Second Circuit issued an unpublished order in the case of Ramchair v. Conway (order here), in which the court vacated a district court grant of habeas corpus on the ground of ineffective assistance of appellate counsel.  The court remanded the case for a hearing to give appellate counsel the opportunity to explain whether she had a strategic reason for failing to present a certain claim on appeal that the district court believed not only should have been presented but would have obtained a new trial for Ramchair.

Outside of the fact that the petitioner has one of my favorite names of all time, the twists and turns of this ongoing case have been truly fascinating.  It has an extremely long history of back and forth battles between the federal and state courts.  Additionally, it raises important questions as to what it means for an appellate attorney to be considered ineffective. 

I think this case deserves an extended post.  And I think the best way to talk about it is to break it up into chapters discussing each stage of the proceeding.  Join me below the fold for the fascinating tale of the case of Racky Ramchair.