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    CRIMINAL LAW UPDATE: Supreme Court Opens the Door to Many More Successful Federal Habeas Corpus Proceedings for Criminal Defendants Alleging Ineffective Assistance of Counsel

    Posted by Gale Burns on Mon, Aug 13, 2012 @ 13:08 PM

    August 14, 2012

    Doug Plank, Senior Attorney, National Legal Research Group

    It is well established that the Sixth Amendment to the U.S. Constitution provides to a criminal defendant the constitutional right to counsel and that this right encompasses the right to effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668 (1984).  Because a determination of whether a defendant's trial counsel has provided effective assistance at trial can rarely be made prior to the end of the trial or prior to the issuance of the judgment of the court, a defendant's first opportunity to raise the issue of ineffective assistance of counsel is on appeal.  However, most States prohibit the litigation of ineffective-assistance-of-counsel claims on direct appeal and, instead, require defendants to bring such claims in a collateral habeas corpus proceeding, usually following the termination of the appeal process.  Such collateral proceedings have their own limiting rules, as most States require all issues that can be raised in postconviction proceedings to be brought in one proceeding and hold that issues not raised in the initial proceeding will be forever barred unless the defendant can show both good cause for the failure to have raised them and actual prejudice from that failure.  Moreover, the U.S. Supreme Court squarely held in Coleman v. Thompson, 501 U.S. 722, 753-54 (1991), that an attorney's errors in a postconviction proceeding do not qualify as cause for a default, and the Court refused to find that a defendant has a constitutional right to counsel in postconviction relief actions, thus barring ineffective-assistance-of-counsel claims for attorney errors in those proceedings.  Under 28 U.S.C. § 2254, the federal statute governing the procedures for bringing a federal habeas corpus action to contest a judgment in a state court criminal proceeding, a defendant is entitled to bring only one proceeding and can only raise issues in that proceeding that were previously raised either in the state trial or in state postconviction relief proceedings.

    These limitations have created a situation in which a defendant has no remedy when he has plainly been denied his constitutional right to effective assistance of counsel at trial and yet his attorney has also failed to raise that issue in his initial state postconviction relief action.  Under the principles discussed above, the defendant would simply be unable to get relief for his deprivation of the right to counsel, because he would be foreclosed from bringing up the issue in a successive habeas corpus action and could not raise the issue in a federal proceeding under § 2254 because it had not been raised at the state level.

    The Supreme Court recently addressed this problem and decided in Martinez v. Ryan, 132 S. Ct. 1309 (2012), a fiercely contested 7-2 decision, that a federal habeas corpus action was indeed available to remedy ineffective assistance of counsel at a state court trial, even where that issue had not been properly raised in the defendant's state postconviction actions.  The reasoning of the Court in Martinez would appear to open the door to many more successful federal habeas corpus proceedings for criminal defendants alleging ineffective assistance of counsel.

    In Martinez, defendant Luis Martinez had been convicted by a jury in Arizona of two counts of sexual conduct with a minor under the age of 15.  At trial, the jury was presented with physical evidence placing traces of DNA on the alleged victim's nightgown, as well as two conflicting videotaped statements from the alleged victim.  In the first statement, the alleged victim incriminated the defendant, and, in the second, she denied any sexual contact with the defendant.  To explain the inconsistencies, a prosecution expert testified that recantations of child abuse accusations are often caused by reluctance on the part of the victim's mother to lend support to the child's claims.

    Following Martinez's conviction, a new attorney appointed for him filed an appeal and then a collateral habeas corpus proceeding, but the attorney failed to allege ineffective assistance of counsel.  Both the appeal and the habeas action were denied.  Subsequently, after a new attorney took a look at the case, Martinez filed a second postconviction relief action in the Arizona trial court, claiming for the first time that his trial counsel had been ineffective for failing to have challenged the prosecution's evidence.  Martinez pointed out in his new petition that his trial counsel should have objected to the expert testimony that purported to explain the victim's recantations or should have called an expert witness in rebuttal, and should have provided an exculpatory explanation for the DNA that was found on the nightgown.  However, citing the rule prohibiting successive petitions, the trial court denied the petition because Martinez had failed to raise the issue of ineffective assistance in the first postconviction proceeding.

    Martinez then filed a federal habeas petition under 28 U.S.C. § 2254, and, as in the state action, the district court denied the action because the issue of ineffective assistance of counsel had not been raised in the first state collateral proceeding.  According to the district court, Martinez could not show cause to excuse the procedural default because under Coleman, the Supreme Court had squarely found that an attorney's errors in a postconviction proceeding do not qualify as cause for a default.  The Ninth Circuit affirmed.

    The Supreme Court reversed, finding that even though the Coleman Court had found that an attorney's errors in a collateral proceeding do not establish cause for a procedural default because the defendant has no right to counsel in such a proceeding, Coleman had involved a different situation because the error at issue there was not one that had the effect of prohibiting the trial court from considering an issue but, instead, involved the failure of the defendant's attorney to raise an issue on appeal from the initial postconviction relief action, thus barring consideration of the issue in a federal habeas corpus action.  As the Court stated, there is a

    key difference between initial‑review collateral proceedings and other kinds of collateral proceedings. When an attorney errs in initial‑review collateral proceedings, it is likely that no state court at any level will hear the prisoner's claim. This Court on direct review of the state proceeding could not consider or adjudicate the claim. See, e.g., Fox Film Corp. v. Muller, 296 U.S. 207, 56 S. Ct. 183, 80 L. Ed. 158 (1935); Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875); cf. Coleman, supra, at 730-731, 111 S. Ct. 2546. And if counsel's errors in an initial‑review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner's claims.

    The same is not true when counsel errs in other kinds of postconviction proceedings. While counsel's errors in these proceedings preclude any further review of the prisoner's claim, the claim will have been addressed by one court, whether it be the trial court, the appellate court on direct review, or the trial court in an initial‑review collateral proceeding. See, e.g., Coleman, supra, at 756, 111 S. Ct. 2546.

    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‑tier review . . . 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. Halbert v. Michigan, 545 U.S. 605, 617, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005); see Douglas, 372 U.S., at 357-358, 83 S.Ct. 814.

    As Coleman recognized, an attorney's errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims. See 501 U.S., at 754, 111 S.Ct. 2546; Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Douglas, supra, at 357-358, 83 S.Ct. 814.

    132 S. Ct. at 1316-17.

    The Court's ruling thus expanded the circumstances under which a federal court may consider an ineffective-assistance-of-counsel claim under § 2254, as the Court held for the first time that when a State requires a defendant to raise an ineffective‑assistance‑of‑trial‑counsel claim in a collateral proceeding, the defendant may establish cause for a default of that claim, both when the state court did not appoint counsel in the initial‑review collateral proceeding, and when counsel in the initial‑review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland.

    In a scalding and sarcastic dissent joined by Justice Thomas, Justice Scalia argued that what the majority did in its opinion was to disregard long-standing precedent holding that criminal defendants were not entitled under the Constitution to counsel in collateral postconviction relief actions by finding, in essence, that there is a constitutional right to counsel in initial‑review state habeas corpus actions.  Justice Scalia ridiculed the majority's distinguishing of Coleman, noting that

    [t]he Court essentially disclaims any need to give full consideration to the principle of stare decisis because Coleman did not involve an initial‑review collateral proceeding for a claim of ineffective assistance of trial counsel. See ante, at 1319. That is rather like saying that Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), does not establish our authority to review the constitutionality of a new federal statute because it involved a different enactment.

    Id. at 1325 (Scalia, J., dissenting).  Justice Scalia further pointed out that the logic of the majority applied equally to a great number of issues that could not be raised on direct appeal but could only be raised in a postconviction relief action:

    [N]o one really believes that the newly announced "equitable" rule will remain limited to ineffective‑assistance‑of‑trial‑counsel cases. There is not a dime's worth of difference in principle between those cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised: claims of "newly discovered" prosecutorial misconduct, for example, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claims based on "newly discovered" exculpatory evidence or "newly discovered" impeachment of prosecutorial witnesses, and claims asserting ineffective assistance of appellate counsel. The Court's soothing assertion, ante, at 1320, that its holding "addresses only the constitutional claims presented in this case," insults the reader's intelligence.

    Id. at 1321.

    If Justice Scalia's fears are justified, the decision in Martinez opens the door to a variety of exceptions to the procedural default rule for federal habeas corpus actions under § 2254.  In any event, the decision offers a new remedy to criminal defendants who have suffered from ineffective assistance of counsel both at trial and in their initial action for postconviction relief.

    Topics: legal research, Sixth Amendment, effective assistance of counsel, Coleman v. Thompson, attorneys postconviction proceeding errors do, Martinez v. Ryan, habeas corpus proceeding available to remedy ineff, U.S. Supreme court, Doug Plank, criminal law

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