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Ineffective Assistance as "Cause" for Default

Last month, we had this post on the case of Trevino v. Thaler, on the question of when alleged ineffectiveness of state habeas counsel would be deemed sufficient cause for a federal court to consider a claim never made or not properly made to the state courts.  Until last year, the answer was virtually never under the landmark 1991 precedent of Coleman v. Thompson

Martinez v. Ryan made an exception for states, including Arizona, which have rules forbidding ineffectiveness claims to be raised on direct appeal.  The Court described the exception it was creating as narrow.

Trevino was argued yesterday.  The transcript is here.  There is a lot of discussion about variations among states in how an ineffectiveness claim may be raised, how they may be raised in Texas, and what difference any of these variations should make in the federal rule.

There is a corollary to Murphy's Law:  "Once you open a can of worms, the only way to get them back in is to use a larger can."  The Court opened a can of worms in Martinez.  It decided to make an exception to Coleman's straightforward rule based on the workings of a state's review process and is now faced with complex task of deciding how to apply that to every variation that comes down the pike.  They are not looking forward to that.  See p. 13.

I hope their decision is to reseal the can.  Something like this:  "The Martinez exception applies only to its specific limits in that decision, and we are not expanding this exception or making any new ones.  Coleman is still the law everywhere else."

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