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 – Rhines Stays

By JK

It is my policy to not discuss any of my cases on this blog.  I also try not to discuss any cases in which the petitioner is being represented by someone in my office. 

But I want to briefly violate that policy and mention the Ninth Circuit’s decision from last week in Blake v. Baker.*  In the first case ever to address this issue, the Ninth Circuit concluded that ineffective assistance of post-conviction counsel, i.e. a Martinez argument, can establish good cause to justify a Rhines stay and abeyance to allow a petitioner to present an unexhausted claim to state court.

* To note, I did not work on this case at all.  The petitioner is represented by members of the Capital Habeas Unit in my office.  I am in the Non-Capital Unit.

Rather than talk about the specifics of Blake, I’ll just briefly mention what this means generally.*  A petitioner files a petition with both exhausted and unexhausted claims.  This is what’s known as a mixed petition.  A federal court is required to dismiss a mixed petition without prejudice.   Unfortunately, if the petition gets dismissed, even without prejudice, then the case is over.  It is much more likely than not that any attempt by petitioner to resuscitate the petition in federal court after exhausting the unexhausted claims in state court will be outside the one-year statute of limitations.  This leaves the petitioner with few choices.  He can either dismiss the unexhausted claims and solely proceed on the exhausted ones.  Or he can move for a stay and abeyance, known as a Rhines stay (because it was created in a case called Rhines v. Weber).  To obtain a stay, a petitioner must show, among other things, good cause for failing to exhaust the claim previously.

* Actually, I have talked about all of this before.  And in more detail.  But it can't hurt to cover it again.

Blake now establishes that a Martinez argument can establish good cause to justify a stay.  Great decision for habeas petitioners.

But there is a likely reason why the decision in Blake is the first of its kind.  A stay typically isn’t necessary for a Martinez argument.  Rather, the typical situation is more like that in Dickens v. Ryan.  A petitioner raises an unexhausted ineffective assistance of trial counsel claim.  There is absolutely no doubt that the state court would find the claim procedurally defaulted because it was not raised previously.  Thus, a return to state court is futile.  In such a situation, the unexhausted claim is “technically” exhausted.  A technically exhausted claim does not get addressed on the merits in federal court.  Rather, the claim is considered procedurally defaulted.  In other words, the federal courts just acknowledge an “anticipatory” default on that claim.  Because the claim is procedurally defaulted, the petitioner is required to show cause and prejudice to overcome the default.  At that point, the petitioner raises the Martinez argument.  In most situations, the federal court will just jump to this step, rather than force the petitioner to go back to state court to obtain the inevitable procedural default first.  That’s what happened in Dickens.

But that’s not what happens here in Nevada.  The district court here makes the petitioner go back to state court to get the procedural default.  The court’s justification for this is that Nevada “allows” second or successive habeas petitions if the petitioner can show “good cause” and prejudice.  So essentially, the district courts here believe that because Nevada has a similar cause/prejudice structure, the petitioner should be required to first present that cause and prejudice to the state court before it gets presented to the federal court.  If there is cause and prejudice, the state court will get the chance to address the merits of the claim in the first instance. 

Personally, I disagree with this.  I don’t think it’s consistent with Supreme Court authority on the issue (such as Harris v. Reed, or at least O’Connor’s concurring opinion in Harris).  But it’s an interesting debate that I am going to have to face repeatedly in my cases.   

Nevertheless, Nevada is most likely not the only State with unusual post-conviction rules.  For those States where the federal courts do believe that a return to state court is necessary, then Blake will provide tremendous assistance to those petitioners.

Habeas Corpus - En Banc Entertainment

By JK

Hello again internet universe.

The Ninth Circuit’s fascinating work in its recent en banc cases has inspired me to jump back into the blogosphere and share some news/thoughts about those recent cases.

Let’s start with some news.  Last year, I wrote about the en banc decision in Sessoms.  Briefly, in a close 6-5 en banc opinion, the Ninth Circuit granted habeas relief on the ground that the petitioner had invoked his right to counsel at the beginning of an interrogation.  The Supreme Court GVR’d it based on Salinas v. Texas.  I found that surprising as Salinas really had nothing to do with the issue in Sessoms.  The biggest wrinkle for Sessoms after the remand was that the author of the 6-5 opinion, the legendary Betty Fletcher, has passed away.  She has been replaced with McKeown. 

The case has now been scheduled for a new en banc argument.  This is going to happen next Tuesday, March 18 at 10:00 a.m. in San Francisco.  You can watch it live through the Ninth Circuit’s website.*

*A long, long time ago, I spent a great deal of time comparing the different websites of the circuit courts (I had done it for all of the New York federal district courts).  It was actually sort of related to work (at least that’s what I told myself), but mostly I just enjoy wasting time on the internet.  The Ninth Circuit had far-and-away-not-even-close the best website.  I am not just saying that because I practice in that court now.  It’s just really well done – easy to navigate, well-organized, nice to look at, has a ton of great info.  It makes me happy to visit it on a daily basis.  A nice perk of this job as now I actually get to say it’s work related!

Speaking of Sessoms, I was recently told about a supremely entertaining article about the case called “Sherlock Holmes and the Mystery of the Pointless Remand,” written by Professor James Duane.  Click the following link to read it: Download Duane article.  Totally worth the time.  The entire article is written as a conversation between Holmes and Watson.  The premise is that the “pointless” GVR in Sessoms points to a larger truth – the Supreme Court intends to summarily reverse Sessoms once it gets back in front of them. 

Sessoms is far from the only en banc habeas action in the Ninth Circuit.  Late last year and earlier this year, the Ninth Circuit issued two, count ‘em two, en banc opinions interpreting Martinez v. Ryan.  And each one, like Sessoms, has a really unique wrinkle.

The first was Detrich v. Ryan.  Detrich was a highly splintered opinion with no true majority opinion.  There was a main opinion, two concurring opinions, and a dissenting opinion.  What was called the main opinion was written by Judge William Fletcher.  Judge Fletcher broke down Martinez and explained what the standard of review should be when reviewing a Martinez claim.  Essentially, what does cause and prejudice mean when a petitioner relies upon ineffective assistance of post-conviction counsel to overcome a procedural default?  Even for a habeas-lover like me, it’s a pretty gnarly opinion.  There’s multiple layers of deficient performance analysis stacked on top of “but for” causations, that it’s a real challenge to follow.  And what makes it even harder to follow is that it was not really presented in a true majority opinion.  So the wrinkled question after Detrich was, does Judge Fletcher’s opinion, which was not joined by a majority of the en banc panel, now set forth the proper analysis for Martinez claims in the Ninth Circuit? 

The Ninth Circuit answered that question last week in a case called Claibourne v. Ryan.  Using a novel approach for the Ninth Circuit (which it adopted from other circuits), the court simply counted votes on the relevant issues, including the dissent votes, to see what conclusion got the most number of votes. 

It came out like this.  Two good results for habeas petitioners, one bad one: 

(1) where it is necessary to consider whether a procedural default should be excused under Martinez in a case where the district court’s holding that there had been a procedural default preceded Martinez, and the result is uncertain, we should remand the matter to the district court to let it to conduct such a review in the first instance, if the result is uncertain.   Good result.

(2) to demonstrate “cause” – the first part of the showing of “cause and prejudice” required in order to excuse a procedural default under Coleman – the petitioner must show that his post-conviction relief counsel was ineffective under Strickland.  This is the bad one and is different from what Fletcher wrote in the main opinion in Detrich.  What this one means is that a petitioner must show that post-conviction's counsel was defective and that the outcome of the post-conviction proceedings would have been different.

(3) “prejudice” for purposes of the Coleman “cause and prejudice” analysis in the Martinez context requires only a showing that the trial-level ineffective assistance of counsel claim was “substantial.”  Good result.

The other Martinez en banc opinion was Dickens v. Ryan.  That case didn’t spend too much time on the Martinez standard, but instead focused on when a petitioner can use Martinez to overcome a procedural default.  It boiled down to this: if a petitioner presents new evidence to a federal court to improve a claim that had been previously presented to the state court, does that make the claim in the federal petition an unexhausted “new” claim such that a petitioner can rely upon Martinez to overcome the procedural default that he would inevitably face in state court if he attempted to raise the new claim?  The Dickens opinion says yes.  It's a great opinion for habeas petitioners.

My favorite part about the opinion was its language about Martinez vs. Pinholster.  Long-time readers will know that this has been a favorite issue of mine for awhile.  It’s also something that Alex has written about on here.  The Ninth Circuit makes quick work of it. And the winner is . . . Martinez!  Here’s the relevant discussion:

We reject any argument that Pinholster bars the federal district court's ability to consider Dickens's “new” IAC claim. The state argues that the district court cannot consider new allegations or evidence proffered for the first time to the district court. In Pinholster, the Supreme Court made clear that a federal habeas court may not consider evidence of a claim that was not presented to the state court. 131 S.Ct. at 1398. However, this prohibition applies only to claims previously “adjudicated on the merits in State court proceedings.” Id. at 1401; see also 28 U.S.C. § 2254(d).

Pinholster does not bar Dickens from presenting evidence of his “new” IAC claim, because the claim was not “adjudicated on the merits” by the Arizona courts. While the Arizona courts did previously adjudicate a similar IAC claim, the new allegations and evidence “fundamentally altered” that claim, as discussed above. See, e.g., Aiken, 841 F.2d at 883. Pinholster says nothing about whether a court may consider a “new” claim, based on “new” evidence not previously presented to the state courts. See 131 S.Ct. at 1401 n.10. Indeed, the Pinholster court expressly declined to “decide where to draw the line between new claims and claims adjudicated on the merits.” Id. Thus, Pinholster does not affect earlier cases like Vasquez, Aiken, and Nevius, or a federal habeas court's ability to consider new evidence where the petitioner successfully shows cause to overcome the procedural default. 

Short and sweet. And patently logical.

What’s the wrinkle in this case?  Well, soon after the opinion was issued, the petitioner died.  En banc opinions are beginning to look cursed, huh?  As a result of the death, the State moved to vacate the opinion.  Earlier this week, the Ninth Circuit denied the motion stating:

[J]udicial precedents “are not merely the property of private litigants,” but are “valuable to the legal community as a whole.”  . . . The precedent set by the en banc panel in this case will undoubtedly affect cases now pending before this court. We see no reason to undo this precedent and force future panels to duplicate our efforts by re-deciding issues we have already resolved within the contours of article III.

So Dickens remains good law.  And good law it is for habeas petitioners.

The en banc machine got kicked back into gear again this week.  The Ninth Circuit agreed to rehear en banc a capital case, McKinney v. Ryan, that raised the following issue: is an Eddings error structural or is it subject to harmless error?  An Eddings error occurs when a state court refuses to allow  certain mitigating evidence during the penalty phase because that evidence was not causally connected to the crime.  Eddings stated that all mitigating evidence must be considered (I hope I am getting this right, I am a non-capital habeas person).  For years, Arizona had violated this clearly established law.  For years, the Ninth Circuit found the error structural.  But recently, a panel found that an Eddings error was harmless.  The dissent in McKinney indicated that there was now an intra-circuit split on the issue and it should be heard en banc.  Ask and ye shall receive.

Finally, there is one other pending en banc case called Frost v. Van Boenning.  It was argued last June. Reviewing the en banc petition, it appears that the issues are very standard-of-review heavy that only a true devotee of habeas will appreciate. Here's the main issue from the petition: "The New 'Super AEDPA Requirement' of Factual Identity with Supreme Court Precedent Conflicts with Supreme Court and Ninth Circuit Decisions and Presents an Issue of Exceptional Importance."  That's an issue I have also complained about on here for years (I called it the "troubling trend").  And it's something that one of my former colleague's at Brooklyn Law School, Ursula Bentele, wrote about in depth. Frost is still pending.  More info on Frost here.

SDNY Grants 2254 Resurrected by Martinez v. Ryan

by Matthew Keller

Court finds state trial counsel ineffective for failing to spot "straightforward" Massiah issue during trial.

Smith v. Fischer, No. 07 Civ. 2966 (S.D.N.Y. Jul. 16, 2013)

        In 2012, the Supreme Court held in Martinez v. Ryan that having an ineffective lawyer (or having no lawyer at all) in a state collateral proceeding could excuse a petitioner's failure to raise an ineffective-assistance-of-trial-counsel claim.  I thought this was a good decision because it would allow the lower federal courts to expend their scarce resources evaluating the merits of ineffectiveness claims rather than hashing out comparatively esoteric considerations of cause and prejudice.  In light of the onerous AEDPA standard, I didn't expect too many petitions to be granted after a merits review.  But last week, the Southern District of New York did just that.  Smith v. Fischer may very well be the first decision in the Second Circuit (or anywhere?) granting a 2254 habeas petition that had been resurrected by Martinez. 

        In March 2012, the district court denied Patrick Smith's 2254 petition as procedurally barred: the state court decision was based on Smith's failure to raise his ineffectiveness-of-trial-counsel claim in his first 440.10 (NY state collateral) motion.  Smith had filed that first collateral motion pro se. 

        A few weeks later, SCOTUS issued Martinez.  Two days after that, Smith moved for reconsideration.  It took the district court eight months, but this past January it decided that Martinez applied and, therefore, the court could reach the merits of Smith's petition.

The Case of the Serendipitous Snitch

        In 2003, a jury convicted Smith of intentional and felony murder for the killing of a security guard during an armed robbery.  Smith was sentenced to twenty to life.  He exhausted his direct appeals in June 2006 and filed his first 2254 petition in 2007. 

        The prosecution had faced substantial obstacles to trying Smith.  He was not arrested until seven years after the crime.  Indeed, the defense was able to have four counts of the six-count indictment dismissed on statute of limitations grounds.  The prosecution had eyewitness ID testimony, but that testimony  described someone who didn't resemble Smith very much and, in any event, those IDs were seven years old.  This gave the defense ample opportunity to impeach the State's identification witnesses based on the passage of time and degradation of memory.  Finally, during pretrial motion practice the trial court excluded Smith's incriminating statements to the police, further weakening the State's case.

        Then, a few weeks before trial, the prosecutor annouced a surprise witness - a jailhouse snitch to whom Smith allegedly confessed.  At trial, William Ferguson testified that, over the course of several days while they were incarcerated together, Smith told Ferguson about his involvement in the crime.  On cross, Ferguson admitted that he pressed Smith for information and attempted to gain Smith's confidence by "sharing his own background" and discussing his own crime.  On postconviction review, Smith's ineffective assistance claim was that trial counsel should have moved, pursuant to Massiah,* to exclude Ferguson's testimony because Ferguson was acting as the government's agent when he elicited the incriminating statements.

*  In Massiah v. United States (1964), the Supreme Court held that  the Sixth Amendment prohibits the government from eliciting statements from a defendant after the right to counsel has attached.  In United States v. Henry (1980), the Court held that an inmate who informs the government of a defendant's incriminating statements becomes the government's "agent" with  respect to later-elicited statements.

The 2254 Decision

        The Southern District reviewed Smith's ineffectiveness claim de novo.  It held that the state court did not make a merits determination of the ineffectiveness claim, even though the state court had referred to the claim as "meritless."  Prior to that, the state judge stated that it "declines to reach the merits of Defendant's [ineffective assistance of] counsel claims." The district court took the state court at its word. It held that the state court's "bare references"* to the merits of the claim following its assertion of a state procedural bar did not "undermine state court's ruling that it 'declines to reach the merits of case.'"

*    This appears to be a dig at the state court decision, which analyzed the "merits" of Smith's ineffectiveness claim in approximately 12 words: Smith's "bare claims of ineffective assistance do not meet the Strickland" standard.  

        The district court had little problem finding ineffectiveness on the part of trial counsel.  It held that "[t]he Massiah issue in this case is straightforward:"

"Mr. Ferguson testified at trial that [he] had agreed to testify for the prosecution before deliberately eliciting incriminating statements from Smith.  Mr. Ferguson's testimony on this issue was enough that defense counsel knew, or should have been aware, that a Massiah violation had occurred and that the statements should be suppressed."
 

        As for Strickland prejudice, the district court had this to say about the probability of an acquittal in the absence of Ferguson's testimony:

"due to the weaknesses the eyewitness testimony, which the trial judge noted, and the lack any scientific or physical evidence linking Mr. Smith to the crime, Petitioner has shown a 'reasonable probability' that he would have been acquitted but for his counsel's failure to suppress Mr. Ferguson's testimony under Massih.  Aside from Mr. Ferguson's testimony as to Mr. Smith's confessions, the evidence at trial consisted of eyewitnesses whose descriptions of the perpetrators were inconsistent with that of Mr. Smith, and whose memories had faded over the seven years between the and the trial. Mr. Smith was not arrested until six after the crime, and there was no physical or scientific evidence tying him to it. Given the limited evidence aside from the informant's testimony, the prosecutor emphasized Mr. Ferguson's statements in summation, including those statements which Mr. Ferguson elicited after he had agreed to testify. During deliberations, the jury asked for read backs of Mr. Ferguson's testimony . . . and returned a guilty verdict the following day. The state court judge who tried the case observed, '[i]t is reasonably clear to me, based upon the quality of the eyewitness testimony in this case, that the jailhouse informant had to be a reasonably important witness.'"  

         Perhaps anticipating that the Second Circuit might disagree that the state court decision was not on the merits, the district court held that the state court denial also didn't survive AEDPA deference: the state court's application of Strickland was "objectively unreasonable" because, "[g]iven the similar critical importance of Mr. Ferguson's testimony to the central issue before the jury in this case, no court could justifiably find that there was not a 'reasonable probability'  that, but for defense counsel's failure to suppress Mr. Ferguson's testimony, Mr. Smith might have acquitted."

        Finally, kudos to SDNY District Judge Sweet for calling it like he saw it here, once again demonstrating the benefits of life tenure free from electoral and other political pressures.  On the issue of whether the police had sent Ferguson in to get something from Smith, the judge was skeptical that it could be otherwise:  

"That Ferguson appeared as an informant on the heels of the trial judge's preclusion of Smith's statement to the police, that the police officers took no notes of their meeting with Ferguson or Ferguson's initial call to [an NYPD Detective], and that Ferguson, as an inmate, was able to have Smith brought to him in the library by a corrections officer all raise serious questions as to whether the police engaged in an intentional effort to secure Smith's incriminating statements."

        That's not Monday morning quarterbacking (which, to be fair, federal courts do indulge in from time to time when reviewing state court trial proceedings).  That's calling the state court out for a serious lapse in sound trial management.  That's what 2254 should be about.

Supreme Court Punts the Martinez / Pinholster Issue For Now (opinions in Schad and Gallow)

By Alexandr Satanovsky

[Reposted from 6/28 with stylistic edits, and updated below]

On Monday, the Supreme Court summarily reversed an evidentiary hearing order in Ryan v. Schad.  Notably, the Supreme Court did not reach the merits of Ninth Circuit's order remand: that an evidentiary hearing is appropriate to consider the impact of Martinez on a maldeveloped claim that was not procedurally defaulted.

The Supreme Court avoided two of the Warden's three questions presented, which also echo the chief legal grief expressed by the judges dissenting from the denial of en banc rehearing. 

Instead, the Supreme Court reversed the Ninth Circuit on a legal technically that was made available by the happenstance of Schad's procedural posture.  That is -- and this is somewhat complicated -- by the procedural background behind the merits of the remand order: (1) the adjudication was completed by February 28, 2012,* (2) Schad’s motion take advantage of the intervening case of Martinez came months after it could have been filed, and was ultimately denied, and (3) the Ninth Circuit seemed to sua sponte decide to reconsider that motion by means of construing another motion as a re-urging of the prior Martinez motion.  Bizarre.  All the while, the Ninth Cirucit refused to issue the mandate in light of what obviously seemed like a final judgment in the § 2254 proceedings.  The Supreme Court found that this ran afoul of its precedents on withdrawing (or withholding) the mandate after the completion of federal habeas proceedings in Bell v. Thompson, and Thompson v. Calderon.

* The PC opinion's procedural history indicates that Schad filed a rehearing petition on that date, after the three judge panel refused to grant relief on the basis of Pinholster. There is no notation of a cert. off of that decision.

What this really means is that the Supreme Court chose to punt yet another** substantive and difficult legal question: whether a Martinez-type cause (an incompetent state collateral lawyer) may provide relief from the Pinholster limitation of federal fact development, and/or the § 2254(d) deferential review, in the same way as it provides relief from a procedural default. 

** See also Fisher v. University of Texas (punting the question of the legal availability of explicit affirmative action in education); Hollingsworth v. Perry (punting the question of the extent of the Fourteenth Amendment's limitation on exclusion of same-sex marriage)

UPDATE (6/29/2013):

Denying cert. in Gallow v. Cooper, the Supreme Court indicated that the Martinez-Pinholster issue is not quite ripe for its determination.  The denial was accompanied by a two-page statement of Justice Breyer (joined by Justice Sotomayor).

Justice Breyer endorses balancing the Martinez-Pinholster equities by construing the procedural default doctrine in a broader, more functional and less formalistic manner. Under this approach, a claim is procedurally defaulted when a petitioner, although technically pleads the claim, "fail[s] to obtain a hearing on the merits . . . because state habeas counsel neglected to 'properly presen[t]' the . . . claim in state court."  

 It seems to me, this will require the Supreme Court to revisit yet again the scope of an "adjudicat[ion] on the merits" for purposes of § 2254(d), as well as the issue of what judicial actor gets to decide whether a claim was adjudicated on the merits..

For example, consider a situation involving a claim "pled" in state court, but so poorly that the it is doomed for all intents and purposes. If the state court says it is denying the claim "on the merits," does it really? Does that statement automatically bind federal courts to § 2254(d) and Pinholster limits on review? The most equitable answer is surely no. A state court should not have unfettered authority to say magic words to invoke the cloak of § 2254(d) and Pinholster. Instead, whether there was a merits adjudication of a claim, within the definition of the federal statute--§ 2254(d)--should ultimately be an objective question of federal law, to be decided by a federal court. If--in light of the state court habeas rules, pleadings and evidence proferred--the claim is insufficiently pled to warrant relief, a federal court should not conclude that it was adjudicated on the merits, no matter what the state court says. To be sure, state courts often deny claims on the merits in the alternative to an obvious procedural bar such as abusiveness or untimeliness. But that is unremarkable, so long as the defaulted claim was sufficiently pled for genuine merits determination.

On the other hand, Justice Breyer's statement makes no pass at the notion that, if there is no doubt as to an adjudication on the merits under § 2254(d), a federal court may use Martinez to bypass the required deferential review.  As I discussed previously, because § 2254(d)--unlike the procedural default doctrine--is a statutory command, a federal court has very limited ability to recognize equitable exceptions. 

Habeas Corpus - Relist Watch

BY JK

As much as I hate to bump Matt's awesome post about the Lopez case from the top of the blog, I did have a few minutes and wanted to mention something from this week's SCOTUSblog's relist watch.

A couple of months ago, I mentioned the Martinez v. Pinholster battle going on in the Ninth Circuit.  It came to a head in a case called Schad v. Ryan, where a bunch of conservative judges issued an opinion dissenting from the denial of rehearing.  

Relist Watch on SCOTUSblog indicates that the cert. petition in Schad (now known as Ryan v. Schad) has been relisted several times.  Here's what RW say about it:

So as not to disturb the fundamental rule of nature that as the number of relists approaches four, at least one has to be a habeas case, the Court relisted Ryan v. Schad, 12-1084, yet another state-on-top habeas case out of the Ninth Circuit, and with a long pedigree to boot:  It was relisted in the early days of Relist Watch, and then GVR’d a couple years ago in light ofCullen v. Pinholster.  In its current form, a panel majority consisting of Judges Schroeder and Reinhardt reconsidered the prior denial of Schad’s latest GVR request, and ordered the case to be sent back to the district court for reconsideration of “new evidence” relevant to his ineffective-assistance-of-counsel claim in light of Martinez v. Ryan.  The Ninth denied rehearing en banc, with eight of the court’s more conservative judges dissenting.  Can’t imagine why this has caught the Court’s attention.

To note, two weeks ago, Alex wrote about a different cert. petition, in Gallow v. Cooper that raises a similar issue.  As Alex indicated in his post, the resolution of the tension between Martinez and Pinholster seems inevitable.  Will it be in one of these two cases?



Martinez v. Pinholster: Coming to SCOTUS Soon?

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.

*    *    *

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.  

Trevino Wins - Some Initial Thoughts

    By Alexandr Satanovsky

    In a 5-4 decision per Justice Breyer, the Supreme Court extended the Martinez exception to states, like Texas, whose "procedural framework, by reason of its design and operation, 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."

    Chief Justice Roberts (joined by Alito) dissented, arguing that Martinez should be limited to its terms, applying only to states that deliberately bar defendants from using direct review to assert claims of ineffecitve assistance of trial counsel. Justice Scalia (joined by Thomas) dissented separately, proclaiming vindication of the warnings voiced in his Martinez dissent.

    Though this outcome was expected, there was question as to how the Court would articulate an extension of Martinez. On that point, Trevino does not contain particularly groundbreaking language, and is not specific in articulating the broader circumstances to which Martinez now applies. As such, the Chief Justice is correct in observing that the opinion fails to explain "how meaningful is meaningful enough, how meaningful-ness is to be measured, how unlikely highly unlikely is, how often a procedural framework’s 'operation' must be reassessed, or what case qualifies as the 'typical' case." Thus, Trevino still leaves the door open for states to argue that Martinez does not apply, because their procedural regime is better suited to meaningfully adjudicate IATC claims on direct appeal. To be sure, distinguishing away a state's particular post-conviction structure is going to be more difficult in the wake of Trevino than it was in the wake of Martinez, but that position is still available, and there may well be judges who will endorse it.

Habeas Corpus - Martinez vs. Pinholster - Who wins?

By JK

Has the Ninth Circuit found another way around Pinholster?  Can a petitioner rely upon a Martinez argument in order to have a federal court review "new" evidence?  Boy, these pathways around Pinholster really are a hot topic in these parts.  

On Monday March 4, Judge Tallman, joined by many, if not all, of the other conservative judges on the Ninth Circuit, issued a published order dissenting from the denial of rehearing en banc in a capital habeas case called Schad v. Ryan.  

In an unpublished order, the three-judge panel in Schad remanded the case to the district court for that court to determine whether petitioner could rely upon Martinez to establish cause for a procedurally defaulted IAC claim.  Petitioner had raised an IAC claim based on counsel's failure to present mitigating evidence during the penalty phase.  In his habeas petition, petitioner was relying upon mitigating evidence that post-conviction counsel ("PCC") failed to present to the state courts.  While PCC had raised an IAC claim based on a failure to present mitigating evidence during the penalty phase, PCC had not presented this particular mitigating evidence to the state courts.*  This failure was the basis of the Martinez argument.

* Specifically, in state court, the claim focused on counsel's failure to investigate and present additional evidence regarding his tragic history of child abuse.  The new mitigating evidence in federal court was evidence of his mental illness as an adult.

This made these conservative judges angry.  In their mind, petitioner was using an improper way around Pinholster to have the federal court consider new evidence not presented to the state courts.  To them, this was not a "new" IAC claim.  In their eyes, petitioner was simply making the old claim prettier with fancy new evidence and then improperly arguing that Martinez allowed the federal court to consider that better-looking new evidence under a new IAC claim.

I find the dissenting judges' analysis a little hard to accept.  In my mind, these judges are simply unhappy with the logical consequences of Martinez.  I really don't think that there can be much of a debate that what the three-judge panel allowed here is fully consistent with Martinez -- petitioner was arguing cause based on post-conviction counsel's "errors" for failing to "properly present" an IAC claim.  Those are words quoted out of the first paragraph of Martinez.  

So Martinez has the upper hand in this round.  But the scorecard could change considerably after the en banc argument in Dickens.  Actually, reviewing the Schad unpublished order, it also appears that a Martinez argument is going to be addressed in the Detrich en banc as well.  Looks like there are going to be many battles up ahead over the reach of Martinez.

Habeas Corpus - En Banc'ed - Updated/Edited

In January 2013, the Ninth Circuit granted a petition for rehearing en banc in a capital habeas case called Dickens v. Ryan.  According to the Ninth Circuit's en banc page, the en banc argument will be calendared the week of June 24 in Seattle, Washington.

This case poses a really interesting situation.  Petitioner lost on his main claim, that the death penalty could not be imposed on him because he was not a major participant in the murder, but obtained a remand to the district court for that court to consider a Martinez cause argument based on a procedurally-defaulted IAC claim.

Petitioner was the one who sought and obtained rehearing en banc. (ed. - see below) Petitioner's petition sought rehearing on the "major participant" issue.  The Martinez issue was not mentioned at all in the petition or even in the State's opposition (ed. - but see below).

The order granting the petition states: 

The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

It's standard.  But what now happens to the Martinez issue?  (ed. - see below) Is that part of the panel decision no longer binding?  (ed. - yes - see below) Is everything now up for grabs on rehearing?  (ed. - yes - see below) Can the State ask the en banc court to revisit the Martinez claim? (ed. - yes - see below) 

I don't know the answer to these questions. (ed. - Well, the update gives answers to these questions, see below)  It would be a shame for a petitioner to get rehearing on an issue on which he lost, and then have the en banc court take away the relief on the issue on which he won.  (ed. - that would be a shame, but not applicable here) Particularly where the State did not even seek rehearing on that issue.  Is this a risk that a petitioner takes when he seeks en banc review?  I am really curious about this.

UPDATE/EDIT:  I did not have all of the information about the en banc rehearing when I wrote the post.  I guess that I should not have relied exclusively on the Ninth Circuit's en banc page which only linked to the habeas petitioner's en banc petition.  

It turns out that the State separately sought rehearing on the Martinez issue.  Although the order granting en banc doesn't specify, it would appear that both petitions were granted.  So the whole thing is getting reviewed.  I guess that answers most of the questions I had above.  One question does remain unanswered (does a petitioner face the risk of giving up a partial win when seeking en banc review on the parts on which he lost). But that only applies to the hypothetical situation where both sides don't seek rehearing en banc in a "split" decision.  I am still curious about that, but it's just not relevant here.