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Texas Execution and Collateral Review Counsel

Yesterday, the US Supreme Court denied a stay of execution to Texas murderer Keith Thurmond, and Thurmond was executed.  No dissent is noted.  (Order here.  Docket here.)  Allan Turner has this story in the Houston Chronicle.

The high court's decision to let this execution proceed bodes well for the State of Arizona's position in the pending case on ineffective assistance of counsel on state collateral review, Martinez v. Ryan.  That case was argued on the second day of the term in October and remains undecided.  Martinez, like Thurmond, claims that the supposedly ineffective assistance of his state collateral review lawyer should furnish "cause" to let him raise in federal habeas corpus claims that he defaulted in state proceedings.

Supreme Court precedent is squarely to the contrary.  The constitutional right to counsel ends at direct appeal.  Ineffective assistance is not "cause" for default where there is no constitutional right to counsel at all.  CJLF's brief in Martinez is here.  The Fifth Circuit's opinion in Thurmond is here.

If the Court were going to overrule that precedent in Martinez would it have let the execution of Thurmond proceed?  I don't think so.

Speaking of Arizona, the Court also denied a stay in the Towery case, noted here and here.  No dissents.  The Arizona Republic has this pre-execution story.


It appears from the docket, Thurmond's stay motion was attached to a writ of cert. from a TCCA decision. I believe that the Fifth Circuit's denial of habeas was a while ago, and so it would seem that the habeas case, in which he would raise the ineffective rep as excuse for procedural default, is final.

That's what makes some of these older stays so irksome. The Court, for whatever reason, stayed cases where the habeas case was already closed. After habeas review, federal court intervention should be over in the vast majority of cases. And with respect to the ineffective rep as procedural default, the habeas petitioner should have raised that argument there. Res judicata has to attach to habeas proceedings.

True, this is a cert. petition to Texas CCA, but I still don't think the court would have allowed the execution to go forward with the Martinez issue out there if there were planning to announce a rule anything like the one Martinez asked for.

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