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Martinez is narrow, for now

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The rule of Coleman v. Thompson, 501 U.S. 722 (1991) has for 21 years protected state judgments from a never-ending spiral of ineffective assistance claims. Without the Coleman rule, there would be no end to attacks on a judgment because every new attack could claim the alleged ineffectiveness of the prior lawyer as cause for not having raised the issue in the previous attack. In capital cases, such a never-ending spiral means an indefinite delay, and hence denial, of justice.

The opinion of the Court in Martinez v. Ryan assures us that it "qualifies Coleman by recognizing a narrow exception...." (Slip op. at 6, emphasis added.) Yes, it does, for now. Justice Scalia warns in dissent that the narrowness will not last.

The exception is: "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 are "initial-review collateral proceedings"? On page 5, the Court defines them as "collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial." Okay, is that "first occasion" as a matter of rules or "first occasion" as a practical reality? The Court tells us at several points that it means first occasion as a matter of rules.
Page 10 (emphasis added): Thus, there are sound reasons for deferring consideration of ineffective assistance-of-trial-counsel claims until the collateral review stage, but this decision is not without consequences for the State's ability to assert a procedural default in later proceedings. By deliberately choosing to move trial ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed, the State significantly diminishes prisoners' ability to file such claims. It is within the context of this state procedural framework that counsel's ineffectiveness in an initial-review collateral proceeding qualifies as cause for a procedural default.

Pages 13-14 (emphasis added): The rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts. See 501 U. S., at 754; Carrier, 477 U. S., at 488. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons.

In addition, the limited nature of the qualification to Coleman adopted here reflects the importance of the right to the effective assistance of trial counsel and Arizona's decision to bar defendants from raising ineffective assistance claims on direct appeal. Our holding here addresses only the constitutional claims presented in this case, where the State barred the defendant from raising the claims on direct appeal.

So in lieu of the old Coleman line between direct appeal and collateral review we have a new line. Ineffective assistance as "cause" ends at direct review unless the claim is ineffective assistance of trial counsel and the appellant is barred by the rules from raising such a claim on direct appeal, in which case it ends at the trial court on the first collateral review.

What should we do from here? First, Arizona and any other state with a rule like the one in question here should repeal it, pronto. Allowing the appellant to make the claim on direct appeal as a theoretical matter, even though it will almost always be denied because it requires facts outside the record, is far less burdensome than litigating the effectiveness of both trial and collateral counsel in federal habeas.

Second, for states that do not have an Arizona-type rule (or have repealed theirs), press with vigor the statement quoted above: "The rule of Coleman governs in all but the limited circumstances recognized here." Lower federal courts have no authority to expand the Martinez exception beyond its limited terms. The strict Coleman rule continues to apply unless and until the Supreme Court says it does not. The opponents will, of course, quote Justice Scalia's dissent that the distinction between a state-rule bar and a practical impossibility "lacks any principled basis, and will not last," (footnote 1) but it lasts until the Supreme Court says otherwise.  The passage on page 10 quoted above says the difference is significant.

Third, Congress needs to amend 28 U.S.C. §2254(i) (addition in italics): "The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254, and it shall not be cause for default allowing consideration of a claim otherwise barred for failure to properly raise it in state court." The parallel provision in Chapter 154, 28 U.S.C. §2261(e), requires a similar amendment.

1 Comment

From my read of this case, state courts in post-federal habeas litigation may ignore it. So new execution dates should be set for all of the cases stayed by the Supreme Court. Since, in those cases, habeas is over, those murderers shouldn't be able to reopen their cases in any forum.

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