Habeas Corpus Blog

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.

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    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 - District Court Review - Checking In On Quezada

When we last checked in on Quezada v. Brown -- the groundbreaking habeas case in which authorization to file a second petition and a request for discovery were granted -- the State had moved for reconsideration of the DJ's order granting discovery.

The good news is that, back on October 19, the DJ denied Respondent's motion for reconsideration on both procedural and substantive grounds.  First, the DJ faulted Respondent for filing the motion in an untimely fashion.  The DJ rejected all of Respondent's excuses for the late filing.

More important, the DJ rejected the arguments on the merits.  And it's an important decision.  As mentioned in the prior post, the State had argued that Pinholster had changed the law and discovery was no longer appropriate in a habeas corpus proceeding as the 2254(d)(1) analysis only focuses on the facts that were before the state court.

The DJ disagreed.  First, the DJ concluded that Pinholster did not change the law on discovery as that decision did not mention discovery, the rule that covers discovery (RGHCCUS2254 6) or even mention the leading Supreme Court case on the issue, Bracy v. Gramley.  The DJ believed that, if Respondent was correct, it would render Rule 6 meaningless and would require the DJ to find that Bracy is no longer good law.  The DJ also noted that petitioner's claims was pursuing claims beyond a 2254(d)(1) claim.

Thus, the DJ joins those cases that have reached a similar conclusion (Conway v. Hauk (from SD Ohio) & Brady v. Hardy (from ND Ill), both cited in the DJ's order).  But there is a definite split developing here.  I would think that the Supreme Court will have to weigh in on this someday.  But for now, at least in Quezada, discovery continues.*

*Just to note, discovery continued while the motion for reconsideration was pending.  I guess it just continues to continue.

Habeas Corpus - Pending Second Circuit Cases Page

Just completed a global update to the page.  Because it has been two months since the last global update, nearly every single case had some activity.  And many cases have now been calendared for the upcoming August 2011 Term.

One quick note, I had mentioned earlier this week the COA in Mason (D/D, it's my case) on the persistent felony offender issue.  But there had previously been a COA on this issue in a case called Seda.*  Unfortunately, no timely notice of appeal was filed in that case.  The COA motion was filed within 30 days of the judgment.  In pro se cases, the Second Circuit will liberally construe that COA motion as a timely filed notice of appeal.  However, the COA motion was filed by an attorney.  So no liberal construction available here.

*Of course, there could be other district court COA's on this issue floating out there, but I don't know about them.

Three months after the entry of judgment, Seda's counsel moved to reopen the time to file a notice of appeal.  Unfortunately, I worry that this motion will be unsuccessful under FRAP 4(a)(6), which has some strict requirements for these things.  Nevertheless, I hope that the judge will re-open the time period and let Seda file a timely notice of appeal.

Habeas Corpus - Cert. Grant in Habeas Case

Supreme Court issued an order list today and granted cert. in a habeas case.  The case is called Martel v. Clair. 

It's an unusual case.  Here's the question presented from the cert. petition:

Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.

It appears to be more of a federal procedure-type question, rather than a pure habeas issue.  Reading the lower court's decision, the question is not whether the habeas petitioner is entitled to counsel or even the effective assistance of counsel.  Since it is a capital case, petitioner has a statutory right to counsel and the Supreme Court has held that counsel must be effective in that situation.

It really is more about a petitioner's right to counsel of his choosing.  This appears to be a novel question.  As the lower court indicated, habeas courts have discretion to replace appointed counsel in a non-capital case.  In other words, federal courts have the power to appoint counsel in non-capital habeas cases where the petitioner has shown that the petition has "likely merit."  The statute that grants that authority also grants the court discretion to replace the appointed counsel where justice requires.

On the other hand, the statute mandating counsel in capital habeas cases does not explicitly grant the court similar discretionary power to replace the assigned attorney.  The lower court concluded that the habeas court had to have that power.  Here's what the court said:

Given the importance that it placed on “quality legal representation” for capital habeas defendants, Congress must have intended to provide such petitioners with at least as much opportunity to replace counsel with whom they are dissatisfied as it provides noncapital habeas petitioners who have no statutory entitlement to counsel. Accordingly, when faced with Clair’s request for new counsel, the district court was required at a minimum to ascertain whether the interests of justice required that the request be granted.

So it really is a three-part question here: (1) does a federal court have the power to substite assigned counsel in capital cases (I would guess yes, but who knows with this Supreme Court); and (2) what is the standard; and (3) was that standard applied correctly here.

Just to note, this case will have no relevance to New York as there aren't any capital habeas petitioners.

Habeas Corpus - The Mystery of the Relist

Reader AS directed me over to a post at the Volokh Conspiracy that discusses cert. petitions that have been "relisted" in the Supreme Court.  Several of these are habeas cases, including a case called Williams v. Hobbs, that I am going to talk about more in a second.

But before I mention anything about these specific "relisted" cases, I actually thought I'd dig into what exactly it means for a case to be "relisted."  This really is advanced Court watching stuff.  On one level, it's pretty apparent what it means - the cert. petition has been added to the list for an upcoming conference after the Court did not act on it when it was submitted to a prior conference. 

But there is far more to it than that.  I was able to dig up this 1995 article in the deepest corner of the internet that does a fairly good job of explaining the history of the "relist," how a "relist" happens, and why.

"Relisting" appears to have begun in the 1970's.  According to the article, "Any justice for any reason at any stage of the Court's decisional process may have a case held over until the Court's next conference.  Repeated requests either by the same or different justices are permitted."

In the past, it was believed that the main purpose of the relist was for a Justice to bide some time to try and gain enough votes for a cert. grant.  Or, maybe, I guess, to try and convince other judges who want to grant cert. to change their minds.  Additionally, the relist can be used to gain some time to write a dissent to a denial of cert.  Another reason for a relist is to gather more papers in the case.  Or a case could be held over because there are other cases in the pipeline raising similar issues and the judges want to hold onto a petition to let those other cases ripen.

Aside from these, there is now one other really important reason for the relist - the summary reversal.  Under the Roberts Court, the number of summary reversals clearly has increased, and that was especially true last term.

A good example from last term is the case of Sears v. Upton.  It was relisted numerous times.  It was relisted so many times I wonder if it was some kind of record.  In the Volokh Conspiracy post, it suggests that, as a case gets relisted more times, it can be expected that there will either be a dissent from a denial of cert. or a summary reversal.  E.g., Sears ended up as a summary reversal.

So a number of relists can indicate that the Court is preparing a substantive summary reversal.  That's a big deal.

At the other end, in some situations, it never becomes clear why a case got relisted.  For example, last term a case called Ryan v. Libberton also got relisted.  However, after the relist, cert. was denied without a dissent.

One thing to watch for when there has been a relist is whether the Court asks for the lower court record.  That is a strong indication that something is happening.  That happened in Sears.

So what does it all mean?  Well, the relist is a real part of the Court's practice.  If a case gets relisted once, it can mean a host of different things, ranging from a summary reversal to nothing more than a cert. denial.  Repeated relists probably means that something substantive is happening in the case. 

One big problem with relists, though, is that they aren't listed anywhere, as far as I know.  It takes close Court watchers (like those at the Volokh Conspiracy) to catch them.  And that takes (a) a lot of knowledge about what petitions are currently pending and (b) a bunch of word-of-mouth.

And I also have one other question: does a relist necessarily have to happen before a dissent from denial or a summary reversal occurs?  That I can't say. And does a case that gets relisted automatically get put on the list for the next conference?  I also can't say.

What brings me to ask these things is a case I have talked about around here before: Maples.  According to the Court's docket, that case was distributed for the long conference on September 27 and then  . . . nothing.  No decision, no request for the record, no relist (even though there has been two conferences afterwards).  It's safe to say that something is probably happening in that case.  But there has been no official relist.  Without a relist, can it be a summary reversal of a dissent from denial?  I just don't know.

Of course, it would seem that it has to get relisted at some point.  The next conference is October 29, so maybe something will happen before then.  And, as I look at the docket in Sears, there was nearly a month-long gap between its original conference (March 19) and the relist (April 16).  I don't know if there were any conferences in between the first one and the second one in Sears.  That is an active time for the Court, but there is also a break in conferences around Easter.  So I can't say either way. But maybe, like Sears, Maples will be relisted after a gap in time. 

The big difference between the two is that the Court asked for the record in Sears but not in Maples.  Does that mean we are looking at a dissent from a denial of cert. as opposed to a summary reversal?  Once again, I have no idea.

Another possibility is that they are just holding Maples pending action in some other case.  But I don't know which case that could be.  But still a possibility.

It's kind of fun to speculate about these things.  I guess that's the true joy of the mystery of the relist.

Since this post is going on much longer than expected, let me move my discussion of the current relists below the fold . . .

Habeas Corpus - Don't Leave Me Hanging

I have been too busy the past couple of days to notice that the Supreme Court issued their first opinion of the October 2009 Term.  It was in a capital habeas case called Corcoran v. Levenhagen.  The opinion can be found here.  The Court vacated a Seventh Circuit decision denying habeas and remanded for further proceedings.

Although it was a win for the habeas petitioner, there is not much in it substantively for either capital or non-capital habeas petitioners. 

However, it's a good decision for all habeas petitioners generally from a procedural point of view. 

Here's what happened.  Petitioner raised four claims in his petition.  The district court granted relief on one claim -- an ineffective assistance of counsel claim -- but did not address the other three, finding that they were mooted out by the grant of relief on the ineffectiveness issue.  The Seventh Circuit reversed the district court on the ineffectiveness issue and denied habeas relief without mentioning petitioner's other three claims.

The Supreme Court vacated the Seventh Circuit decision, concluding that the circuit court should not have denied the petition without any mention of the other claims.  It held that the court "should have permitted the District Court to consider Corcoran’s unresolved challenges to his death sentence on remand, or should have itself explained why such consideration was unnecessary."

Although the result seems obvious, it does appear to be a novel statement from the Supreme Court as to how to proceed in this type of situation.  The Court does not cite to any law or rule to support its decision.  Rather, this decision appears to be the Court exercising its supervisory role over the lower courts.

So a good start for the 2009 Term.

Habeas Corpus - Amending a Petition

One of the things I really love about habeas corpus is that it stands at the crossroads of so many different areas of law.  There is, of course, federal constitutional law and state criminal law.  But then there is federal statutory interpretation and federal common law.  And while the ultimate focus of a habeas case is a criminal conviction, the habeas proceeding is considered a civil proceeding in federal court.  As a result, the federal rules of civil procedure (“FRCP”) also play a role in habeas cases, at least to the extent they don’t conflict with the very special Rules Governing Section 2254 Cases in the United States District Courts.  It’s just a huge mishmash of a lot different areas of law.  Learn about habeas and you learn about a lot of different areas of law.

An amendment to a habeas petition is one of those procedural things that brings into play a bunch of these different areas of law.  And because it concerns a habeas petition there are various, unique complications.

There are various reasons why a request to an amend a petition may come up, I mean beyond the obvious ones.  For example, it can often happen when a court grants a pro se petitioner’s request for the assignment of counsel and the attorney comes in and decides that certain claims should have been raised in the original petition.  So this concept is not just important for pro se petitioners who struggle to properly plead a petition.  It is just as important for practitioners.

So what exactly is the standard for amending a petition?

The answer to this below the fold . . .