Habeas Corpus Blog

Habeas Corpus - Supreme Court Action 2/25

By JK

Looks like Habeas Day brought out a lot of laughter at the Court today.  I counted at least six times between the two arguments where the transcript reads (Laughter.).  But all the laughter appeared to stop once Justice Kennedy shamed the other judges into taking capital cases a little more seriously.  At least, that's how I read the transcript.  Here's the relevant exchange (from pages 41-42 of the Trevino transcript):

JUSTICE BREYER: I'm being sarcastic there but I don't mean to be. I mean, you see what I'm trying to get to.

JUSTICE SCALIA: It was the nose of the camel, which is what Martinez was -- which is what the dissent said, actually.

(Laughter.)

JUSTICE BREYER: Yes, the dissent said that.

(Laughter.)

JUSTICE KENNEDY: This is very amusing in a capital case.

Here are my quick takes on the two cases from the argument (gonna use some short cuts, sorry for the lack of context):

Perkins - seems to be at least five judges willing to say that actual innocence can be used to get an untimely petition into court, but that there will be some kind of diligence requirement.  Not sure what that will eventually look like though.

Trevino - the argument was a mess.  The parties seemed to argue most over what the Texas law actually says.  The judges seemed a little exasperated by all of it.  But it does appear as if there are at least five judges that seem willing to expand Martinez (or "clarify" Martinez to include State's beyond Arizona).

The transcript for Perkins is here.  The transcript for Trevino is here.

The other big news at the Court today was cert grants in a habeas case and a front-end criminal case.  They are:

Burt v. Titlow, 12-414

(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Kansas v. Cheever, 12-609

(1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

A cert. grant in a Sixth Circuit case in which habeas relief was granted probably means that a reversal is on the way.  But, even with these elements present, I am not sure whether that is automatic for this one -- Lafler is just too new.  There could be a chance that the Court just wants to give helpful guidance in those cases.  Yeah, that's probably wishful thinking. It seems more likely that a cert. grant to the State means that the Court wants to take the habeas grant away.  

Habeas Corpus - February Calendar

By JK

The Supreme Court released its calendar for it's February sitting.  

And there is going to be a habeas day! This time, it's February 25, 2013!  The two most recent habeas cert. grants, McQuiggin v. Perkins and Trevino v. Thaler, are both calendared for that day.

For more on those cases, please read Matt's post about McQuiggin and Alex's post about Trevino. 

Trevino Grant, Haynes Stay, and the Future of Martinez v. Ryan

By Alexandr Satanovsky

    It took the Supreme Court just seven months since handing down Martinez v. Ryan to grant cert. in Trevino v. Thaler, a case that may expand the Martinez rule beyond its most limited interpretation.

    To appreciate Trevino's possible significance, let's step back and consider the potential range of Martinez's doctrinal impact. At its most narrow and limited, Martinez applies only when two conditions are met: (1) the prisoner is raising a substantial trial IAC claim, and (2) state law requires such a claim to be initially reviewed in a collateral proceeding, not direct review. At its broadest, Martinez may apply when (1) the prisoner is asserting any substantial claim on collateral review -- IAC, Brady, jury tampering, etc., and (2) such a claim is most naturally reviewed in a collateral proceeding, determined by whether the factual basis of the claim requires development beyond the trial record. 

    The narrow view has carried the day in the lower courts, and quite understandably: Martinez limited itself to its facts, i.e., an IAC claim brought under a scheme that barred IAC from the direct appeal. But this view is doctrinally incoherent: First, there is no compelling reason to treat IAC claims as unique from other claims, like Brady, that require investigation and extra-record development, which is obviously too burdensome for an incarcerated petitioner. Second, it makes little sense to resurrect legal formalism by approving a distinction between those states (like Arizona), which impose a formal bar to the direct review of certain claims, and others (like Texas), which--although do not formally bar the claims--realistically  render them impracticable on direct review.

*    *    *

    Up until October, there was little suggestion that Martinez may mean something more than the narrow interpretation described above. But that all changed when the Supreme Court stayed a bunch of executions to consider cert. petitions re: Martinez's applicability to Texas, and eventually granted the Trevino petition. And this past Monday, Justices Scalia and Sotomayor issued brief statements concerning the Haynes v. Thaler stay issued several weeks ago.  

    This past month's developments, I think, make for a good prospect that Martinez will be expanded beyond its limited facts. For the following reasons (which, to be sure, are nothing more than my reading of the proverbial tea leaves), I think Trevino will be a stride in the direction of the broad, doctrinally coherent view of Martinez.  

1.  The Genesis of the Martinez Exception: To get some idea as to what the Court may have been thinking when it issued Martinez, consider the following:  First, there was no circuit split for the Court to address when it chose to grant cert. It was a non-capital case and the petition did not gesture toward a gross miscarriage of justice. Indeed, the thrust of the cert. petition was nothing beyond a call for a change in the law on cause-and-prejudice (well, a call for a constitutional right to collateral counsel, which the Court sidestepped), uncannily resembling a merits brief. Second, the ultimate disposition of Martinez was clean and concise: a 7-2 split, one majority opinion and one dissent.

    This "genesis" of the Martinez rule suggests to me that it was deliberately planned, possibly even prior to the cert. grant.  In other words, Martinez was not a haphazard product of untoward necessity, as may be the case when there is a flagrant circuit split (or other non-merits reason for cert.), and when the disposition involves multiple fractured opinions. And if we grant that Martinez was a delibarate decision to change the law, I find it difficult that Court sought nothing more than to carve out an uber-limited and doctrinally incoherent exception.

2. Revisiting the Rule in Trevino: Returning to Trevino, it's notable how quickly the Court chose to revisit and clarify Martinez. It has been just over seven months, with no circuit split and modest percolation. As with Martinez, the most sensible explanation for the Trevino grant, I think, is that the Court wants to change the law and correct the Fifth Circuit's unduly narrow interpretation. If the Court agreed with the Fifth Circuit's narrow approach, I doubt that it would have granted cert so early. Instead, it would have waited for another circuit (read: the Ninth) to hold that Martinez applies to a state that formally allows IAC claims on direct review, and reverse that decision.

3. Scalia's Dissent to the Haynes Stay: Finally--and this last point only little probative value--it is interesting to look at Scalia's statement, dissenting from last month's stay on the Martinez issue.  His gripe with the Stay was not that Haynes's IAC claim may not procedurally benefit from Martinez, but that his IAC claim was, in any event, meritless:

"Even if the Fifth Circuit is incorrect and Martinez does implicate Texas’s system of postconviction review, a stay is unwarranted here because Haynes presents no plausible claim for relief. His complaint is that his trial counsel was ineffective at sentencing. The absolute most to which he would be entitled under Martinez is excuse of his procedural default of this claim, enabling a federal district court to adjudicate the claim on the merits. But that is precisely what the District Court already did on federal habeas review[, finding the claim to be meritless.]" 

Neither Haynes, nor any other stay issued in anticipation of Trevino, had a noted dissent arguing, e.g., that the Court's "limited exception" in Martinez, should be allowed to percolate, before staying otherwise lawful judgments in the name of hastily clarifying the law.