Habeas Corpus Blog

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.

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. 

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.

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.

Habeas Corpus - Huge Habeas Win in Supreme Court

I apologize for the lack of activity around here over the past two months.  Too busy to blog, basically.  But I have been keeping track of things.  I do intend to catch up on habeas stuff from the past few months.  Probably going to be awhile for all of that to happen.

But I could not resist blogging about today's huge habeas win in Martinez v. Ryan.  I listed Martinez as the most anticipated habeas case of the term.  And it did not disappoint.  Here's the holding, courtesy of Justice Kennedy:

Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.

What does that mean?  Well, according to Kennedy, it does not mean that a criminal defendant now has a constitutional right to the effective assistance of counsel at an initial-review collateral proceeding.*  But a habeas petitioner can now argue that an attorney's ineffectiveness at such a proceeding can represent the excuse for a federal court to review the merits of an IAC claim related to trial counsel that was not raised in state court.  Get it?

*Kennedy defines initial review collateral proceeding as a collateral proceeding (in NY we are talking about 440's) which provide the first occasion to raise a claim of ineffective assistance of counsel.  Most States relegate IAC claims to collateral proceedings.  New York does this too, for the most part.

I know it's a morass inside of a labyrinth of complicated habeas issues.  I find it difficult to break it down any more simply without going back to square one of habeas law and mapping it all out.  I'll just say, it's a big deal. 

Why is it a big deal?  One may ask.  Does it change anything?  Two may ask.  Will it change anything?  Three may ask.  I think that Three asks the most pertinent question.  And, in my mind, the answer to Three's question is definitely yes. I think, as Scalia lamented in his cutting dissent, it will lead to States assigning attorneys in most, if not all, initial-review collateral proceedings. 

What's interesting is that, while Kennedy tries to keep the holding narrow, the rationale behind the holding is really broad.  In fact, Kennedy does a great job of explaining why an attorney is necessary in these types of proceedings.  Here's what he says:

    Where, as here, the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim. This is because the state habeas court “looks to the merits of the clai[m]” of ineffective assistance, no other court has addressed the claim, and “defendants pursuing first-tierreview . . . are generally ill equipped to represent themselves” because they do not have a brief from counsel or an opinion of the court addressing their claim of error. . . .

    Without the help of an adequate attorney, a prisoner will have similar difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim. Claims of ineffective assistance at trial often requireinvestigative work and an understanding of trial strategy. When the issue cannot be raised on direct review, moreover, a prisoner asserting an ineffective-assistance-of-trialcounsel claim in an initial-review collateral proceeding cannot rely on a court opinion or the prior work of an attorney addressing that claim. . . . To present a claim of ineffective assistance at trial inaccordance with the State’s procedures, then, a prisoner likely needs an effective attorney.

    The same would be true if the State did not appoint an attorney to assist the prisoner in the initial-review collateral proceeding. The prisoner, unlearned in the law, may not comply with the State’s procedural rules or may misapprehend the substantive details of federal constitutional law. . . . While confined to prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective assistance, which often turns on evidence outside the trial record.

So, there are really logical and highly equitable reasons for providing an attorney to help a defendant litigate that type of claim.  Of course, those reasons were around before Martinez and, sadly, are not what's going to motivate the States to assign counsel. 

Rather, the States are going to start assigning attorneys because it will provide them cover when they go to federal court.  It will essentially nip the cause argument in the bud.  The State will assign an attorney and when they get to federal court they will stand behind the attorney's actions, which will be given a great deal of deference under the IAC standard.  It is the most prudent action for the State to pursue, as opposed to taking the risk of having to litigate the merits of all of the underlying IAC-trial related claims in federal court.

I am guessing that a lot more needs to be (and will be) said about Martinez over the next couple of months.  I am going to process it some more and see if there is an easier way to break it down.  But for today, I'll just be happy about the habeas win. 

Habeas Corpus - Habeas Win in Supreme Court

Hooray!

There was a rare habeas win in the Supreme Court this past Wednesday.  It happened in Maples v. Thomas.  In an opinion by Ginsburg that was joined by six other judges, the Court concluded that petitioner, who had basically been abandoned by his attorneys at a critical stage of the state court proceedings, had established cause for a procedural default, namely the failure to file a timely notice of appeal from a state court denial of a collateral motion.

This was obviously the right result.  And I have said that for a long time.  In fact, I created my "Uncommon Sense Meter"* as a result of Maples. 

*Rating cases on the scale of how much it defies common sense that a procedural rule led to an obviously unfair result.

But I couldn't have said it any better than Ginsburg did in her opinion:

In these circumstances, no just system would lay the default at Maples’ death-cell door.

Scalia and Thomas dissented and would have been perfectly comfortable with holding the default against Maples.  So following Ginsburg's logic, these two judges simply do not believe in a just system.  Hey, I am not the one who said it.

Unfortunately, I am guessing that the good times won't last long.  The Court only concluded in Maples that there was cause for the default.  The case was remanded to the 11th Circuit to determine whether there was prejudice.  And this part is dripping with unfair irony: it will now be extremely hard for Maples to prejudice because Pinholster has rendered the system unfair. 

In Maples, the state court rejected Maples' IAC claim in state court without holding a hearing.  In fact, according to Ginsburg, the state court simply signed a pre-made order that the State had submitted in opposition to Maples' state collateral motion.

It is pretty safe to say that it will be very difficult, if not impossible, for Maples to establish prejudice with respect to his IAC claim without a detailed factual record to support the claim.  And, because the State refused to allow Maples to create that record -- even if that decision was completely arbitrary -- Pinholster now establishes that the state court's decision denying a hearing has preclusive effect on federal courts.  Petitioner now has no opportunity to make the necessary factual record to establish the IAC claim.  It's going to make it very hard to establish prejudice.

As I have said many times before, it is completely unfair to give state courts preclusive authority on such a decision.  I only wish the standard in habeas cases was "no just system could tolerate the result."  It would make the Court want to reconsider what they did in Pinholster (well, except for Thomas and Scalia).

Habeas Corpus - Depraved Indifference Overview - Updated

Recently, some readers have reached out to me with inquiries about depraved indifference cases.

There is no doubt that depraved indifference cases have popped up a lot around here.  In fact, the first substantive post on the blog had to do with a habeas grant in a depraved indifference case (it was later overturned by the Second Circuit).  A search of the blog shows that there have been dozens of posts that have mentioned this category of cases. 

So I thought it might be helpful to give an overview of what's happened and is happening in those type of cases.*

*For some reason, I felt uncomfortable trying to find a pithy title for a post about depraved indifference cases.  I have previously lamented the fact that pithy titles are not really my forte.  Only rarely do I find that right combination of brevity, cleverness, metaphors and/ or puns, that all come together in a perfectly pithy blog post title.  I am always amazed when someone can do it.  UPDATE: From the comments, this clever proposed title made me laugh: "I'm deprived on account of I'm depraved."  It's kind of perfect.

I am going to cover the following areas:

A. Background (discussing the change in law)

B. Relief

C. Habeas Review of the Merits

D. Procedural Default

E. Retroactivity

This is going to be a long post.  So, for the first time in a long time, I am going to put stuff below the fold . . .

Habeas Corpus - Welcome Back, Supreme Court! - Term Preview - Edited

The Supreme Court's October 2011 Term begins this week.  And it's going to be a very active one for habeas cases.  There are already eight cases on the Court's docket.  I am really excited about a couple of those.  I also dread what the outcome is going to be in a couple others.  And at least one I don't really have much of an idea as to what it's all about.  There are also a couple front-end criminal cases of note.  So it's going to be a big term in habeasland. 

And remember, Habeas Day at the Court will be this Tuesday, when the Court intends to hear three (Maples, Martinez, Howe) of the eight.

Since I love lists, here is a list, in descending order, of this Term's habeas cases on the scale of "what I find most interesting" (in other words, 1=most interesting; 8=least interesting)  I'll note my feeling about the outcome of the case as either (a) excited; (b) dread; or (c) uninterested.

The List:

(1) Martinez v. Ryan (to be argued on 10/4)- Excited

Issue: whether a criminal defendant has the right to counsel at a state post-conviction proceeding in order to raise claims (mainly IAC) that can't be raised on appeal

I hate to swim with the current on this one, but it's hard to argue that this isn't the most interesting (and important) habeas case on the Court's docket this year.  It certainly has the greatest potential impact on criminal law.  Not as big as something like Gideon v. Wainwright (right to counsel in criminal cases) or Douglas v. California (right to counsel on appeal if indigent), but it will be the next biggest thing.  No matter which way it goes, it's going to be a fun opinion.  I'd love to see a split court here as the question may come down to how each individual Justice views the role of counsel in the criminal justice system.  Fun, fun, fun.

(2) Greene v. Fisher (to be argued on 10/11) - Dread/Excited

Issue: when is the temporal cut-off for clearly established law under 2254(d)(1)

For such a simple issue, it does seem odd that I would rank it so high.  But this case is going to have the biggest day-to-day impact on habeas cases.  And it raises abstract questions about the interplay between the AEDPA and the retroactivity rules of Teague v. Lane (i.e., whether those latter rules still exist or will the Court's interpretation of 2254(d)(1) in Greene supersede them).  Which makes me excited for this case.  But I have larger feelings of dread about it as I expect a very anti-petitioner decision here. And you can read more about my feelings of dread about this case in this article that I wrote over the summer.

(3) Maples v. Thomas (to be argued on 10/4) - Excited

Issue: whether there was cause for petitioner's procedural default based on (essentially) attorney and state court negligence

The issue in this case is not really that interesting, but the underlying facts are.  This is the case where the Big City law firm dropped the ball on petitioner's case and the state courts did absolutely nothing to straighten out the problem.  And there was so much unfairness to petitioner that it led multiple national news outlets to take up his cause.  And, around here, it led me to create (the little used, but still enjoyable) "uncommon sense meter" -- the rates cases on the scale of whether it defies common sense that some ridiculous procedural rule can allow a court to overlook an obviously unfair result.  This is a case where good facts could chip away at what otherwise is bad law for petitioners.

(4) Lafler v. Cooper (to be argued on 10/31; being heard with Missouri v. Frye)- Dread

Issue: whether a petitioner who was convicted after a trial can argue IAC based on counsel's failure to give proper advice during the plea bargaining stage of the case

This is also a case with a big potential impact on the criminal justice system.  There is plea bargaining in every case and in almost every case that eventually goes to trial, a plea offer was made at some point in the case.  Counsel is supposed to both communicate that offer to the defendant and give advice on it.  The question here is whether petitioner should be able to get any relief when counsel messes that up.  And, if so, whether any relief is available after the defendant is convicted after trial or does that conviction somehow moot out the deficient performance in the plea bargaining stage.  The fairest result here would be that a petitioner should still be able to raise the claim even after a jury verdict.  But, based on the Court sua sponte adding this particular issue to the Frye case, I have a bad feeling about where this is going.

(5) Howes v. Fields (to be argued on 10/4) - Excited

Issue: whether a prisoner, who is excluded from the prison population and questioned, is always "in custody" for Miranda purposes

I am excited about this case since it is a real substantive law habeas case.  Lafler is too, but that substantive law could be extinguished based on where the case goes.  Not this case.  It is a basic up or down vote.  I have searched my memory and I simply can't remember the last up vote on a habeas case in the Supreme Court where the final decision ended up as a grant for the petitioner.  I don't see that as the most likely outcome here.  But there is a chance for that, which gets me excited.  On the other hand, it is a cert. grant from the Sixth Circuit, and that typically means . . . bad news for the Sixth Circuit.*

*I forced my wife to watch the original Bad News Bears again the other day.  I think that is my second favorite movie of all time.

(6) Gonzlez v. Thaler (to be argued on 11/2) - Dread/Uninterested

Issue: (i) was a COA appropriate on a habeas procedural issue? and (ii) something about what date to use to determine when a petition is timely under the statute of limitations

This case kind of scares me a little.  The Court sua sponte added the COA question.  I am not sure why since the Court has already held that a COA would be appropriate in this situation.  Maybe the Court was not satisfied that the circuit court properly followed the rule in determining whether to issue a COA on a procedural issue.  I should probably look at the briefs for some guidance on that.  But there is a potential that this case could place a further restriction on habeas law.  As for the other issue, I re-read the lower court decision and I still don't get it.  It seems very state-specific as to what date should be used as the end date of the appeal.  And each one is a totally legitimate way of looking at it.  Does the Supreme Court need to step into that mess and say that it needs to be the same date in all cases, regardless of the state's individual procedure?  It seems like a waste of time.  State law should control on that question in my mind.  States' rights!  (That's tongue in cheek -- secessionist talk is best left to southern governors with presidential aspirations)

(7) Wood v. Milyard (recent cert. grant) - Dread

Issue: can a circuit court raise statute of limitations defense sua sponte*

*There's those words again.  I talk about how much I love the term sua sponte about midway through this post.

I really dislike the statute of limitations.  To be fair, a statute of limitations isn't the worst thing ever.  But the one-year one is truly oppressive.  I wish it would go away or get ameliorated (like turned into a two or three year limitations period).  But my personal feelings aren't relevant.  I don't think the federal courts dislike it too much.  And, even though it is a defense that the State can use and not a jurisdictional bar, I worry (in the extreme) that the Supreme Court will uphold a circuit court's power to do this.  In a fair world, they won't.  I mean it's typically frowned upon for an appellate court to go around raising defenses sua sponte where a litigant hasn't relied on it below.  But, of course, everything is skewed in habeasland.

(8) Martel v. Clair (to be argued 12/6) - Uninterested/Excited(?)

Issue: can court-appointed habeas counsel be replaced in a capital habeas proceeding

This case appears to boil down to a statutory interpretation issue.  And it's a statute that I am not too familiar with.  So my interest level is not high.  But maybe, just maybe, the opinion could branch out into issues that I am more interested in.  If the Court's opinion could potentially be applicable to the question of replacement of court-appointed counsel in a non-capital case (i.e. when a court grants a petitioner's motion for assignment of counsel under the "likely merit" standard), I'd be interested in that.  And, because the issue presented seems broad (although I don't think in the end that it is), there is a small chance that the Justices could once again veer off into the more abstract concept of an attorney's role in the criminal justice system.  Which could be fun.  But I won't get my hopes up.

[edited the Gonzalez paragraph for clarity]