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Holding the Line On Finality?

U. Tex. Law Professor Steve Vladeck has this post at SCOTUSblog on yesterday's argument in Davila v. Davis.  This is the case of a Houston gang member who wanted to get a member of a rival gang, so he opened fire with an AK-47-type weapon on a porch full of women and children having cake and ice cream at a child's birthday party.  Steve thinks Texas will prevail, and the question is how narrowly or broadly.  I was also encouraged by the argument transcript, but I am glad to have this independent, in-person observation.

After the break are the background of the case and my notes on the argument transcript.
Coleman v. Thompson, decided in 1991, was a major victory in the fight to bring some degree of finality to criminal convictions.  That case put a limit on the endless reopening of decided cases through the loophole of each new lawyer in a case claiming that the prior lawyers rendered "ineffective assistance."  Coleman said that since there was no constitutional right to have a lawyer appointed for habeas corpus at all the supposedly ineffective assistance of the lawyer that was appointed would not be "cause" to reopen otherwise lapsed claims.  Actual innocence of the crime remained an independent exception to allow reopening cases, and it does to this day, but most defendants and particularly death-sentenced defendants are clearly guilty.

Martinez v. Ryan, decided in 2012, created a large exception to Coleman.  That case held that if the state habeas corpus lawyer was ineffective in failing to argue that the trial lawyer was ineffective, that would be an exception allowing the federal habeas corpus court to reach the merits of the defaulted trial IAC claim.  Originally, Martinez was supposed to be only for states that had a rule saying all trial IAC claims must be brought in habeas corpus and not on direct appeal, but in Trevino v. Thaler the Court extended Martinez to cases where such claims need to be brought in habeas corpus as a practical matter, which is most states.  Texas's brief in this case can identify only four states to which Trevino does not apply.

Davila's underlying claim is that the jury instruction did not clearly specify that he would not be guilty of capital murder under the multiple murder circumstance if he only intended to kill one person but actually ended up killing two.  His appellate attorney did not brief the instruction issue, although she did brief a number of others, including sufficiency of the evidence of the defendant's mental state on this point. 

The question before the Supreme Court is whether to extend the Martinez exception to the Coleman rule to include claims of ineffective assistance of appellate counsel in addition to trial counsel.  CJLF's brief in the case, explaining the issues in more detail, is here.

Right out of the gate, Justice Sotomayor questioned whether the trial lawyer properly preserved the objection.  If not, then the appellate lawyer had much less to work with, as the judgment could not be reserved on that ground unless the claim qualified for Texas's variation of the "plain error" rule, a much tougher row to hoe.  Justice Gorsuch also seemed dubious on this point. 

Chief Justice Roberts noted that good appellate lawyers pare down the issues on appeal and concentrate on the strong ones.  They don't throw everything against the wall and see if any of it sticks.  The Chief was a renowned appellate lawyer before becoming a judge, and he knows whereof he speaks.  This is a point the Supreme Court has made before in Jones v. Barnes and Smith v. Murray, but it evidently needs repeating.  Merely finding an issue that an appellate lawyer did not brief is not enough to support a claim of ineffective assistance.

Justice Ginsburg asked defense counsel if they couldn't just affirm on the ground that the appellate lawyer actually was effective in this case, as the district court held.  Not a good sign for the defendant, Vladeck notes.

Justice Kennedy is concerned, and rightly so, about the burden on the courts if the hole in Coleman is widened further.  The petitioner's own brief notes that claims of ineffective assistance of appellate counsel (IAAC) is raised in nearly a third of cases.  "This is a tremendous burden."

Petitioner's counsel misleadingly notes that since Martinez "there has not been an inundation of new petitions."  New petitions aren't the problem.  The problem is additional issues that need to be litigated on the merits that previously could have been dismissed at the threshold as defaulted.  Since IAAC claims are frequently raised and very rarely have merit, this is forcing the district courts to search haystacks for needles.  The haystack/needle problem has been the bane of habeas corpus for a very long time.  Justice Jackson noted it in his classic separate opinion in Brown v. Allen (1953).  Later in the argument, Tex SG Scott Keller notes the brief study appended to our brief regarding how many times Martinez has come up in Arizona capital cases and how rarely the claims have been successful.

Justice Alito notes, "What concerns me about your position is that it seems to blast an enormous hole in the doctrine of procedural default."  Yes, that is what concerns me, also.

On pages 25-26, Justice Gorsuch raises the issue of stare decisis -- respect for precedent.  He notes that the petitioner is asking for a partial overruling of Coleman, and curiously he didn't address that at all in his briefing.  Memo to defense counsel:  If you ignore an issue in a CJLF brief you may get nailed on it in oral argument, or even worse in the opinion.  This isn't the first time it has happened.  But some don't get the memo.

During the State's argument, Justice Sotomayor makes a curious comment.  Apparently referring to the impact of Martinez, she says, "And as with all cases, there's an initial uptick of claims until people settle down and realize that it's a small number that are viable, and that happens pretty quickly."  Wow.  Is that really what she thinks is the impact, just an initial, small, brief uptick?  Where did she get that?  She is very much mistaken.  Martinez and Trevino have imposed a permanent and significant increase in the time and resources needed to adjudicate federal habeas corpus petitions.

She goes on, "This is -- no one is going to be looking at an ineffective-assistance-of-appellate-counsel claim, assuming one is viable, unless there's a substantial claim, and no one will otherwise look at it."  This has no connection with reality.  Habeas petitioners' lawyers raise insubstantial claims all the time.  That is the haystack Justice Jackson spoke of so long ago, and the stack has grown enormously since then.  The attorneys for the state must look at them to refute them, and the district courts must look at them to decide them.

This is followed by a discussion of how the present case is different from Martinez, i.e., how claims of ineffective assistance of appellate counsel differ from claims of ineffective assistance of trial counsel.  Let's begin with the assumption that something happens at trial, on the record, that is an error prejudicing the defendant.  Then there are two scenarios:  (1) defense counsel does not object and appellate counsel does not include the issue in the appellate brief; or (2) defense counsel does object and appellate counsel does not include the issue in the appellate brief.

In scenario one, if the error was sufficiently egregious that any competent lawyer would object, then the defendant has an ineffective assistance of trial counsel claim.  That claim will generally be stronger than any ineffective assistance of appellate counsel claim because unpreserved errors are much more difficult to get reversal on and the argument for focusing on other claims is stronger.  If the habeas lawyer ineffectively fails to raise it, Martinez applies directly, and there is no need for an extension.

In scenario two, the basic problem that the Martinez Court sought to avoid is not present.  The problem was that a defendant might have a meritorious claim that no court had ever decided on the merits.  But in scenario two the trial court has decided the claim on the merits.

One way or the other, the defendant gets at least one court ruling the merits of his underlying claim.  No extension of Martinez is needed to prevent that.

The questioning then returns to the burden on the courts, the discussion noted above.  Justice Breyer clearly gets just how rare meritorious claims are in the area under discussion.  "Very, very few [Martinez claims] are granted, very few. And here, I guess, very, very few would be granted. But the burden would be to read all those."  Right.  But he asks, "Is it fair to say several hundred a year have come up under Martinez out of -- out of, roughly, how many habeas petitions? Out of fifty thousand? I don't know. Hundred thousand? Forty thousand?"  Nobody really knows, but I very much doubt it.  In a "throw everything you can against the wall" environment, it has to be much more than that.  Evidently there are only four states where the Martinez rule does not apply.  (See p. 38, line 9.)

Justice Kagan hammers the idea that effective assistance of appellate counsel is an independent right, and any claim it was violated must be adjudicated regardless of whether the defendant has received an adjudication of the underlying claim of trial error.  I think that is a prime example of thinking about rights in the abstract rather than how they really affect the fundamental fairness of the proceeding and whether we can have confidence in the result.  Appeals and the right to counsel on appeal exist only to assure the fairness of trials, and appeals are not constitutionally required at all.  That is not to say they aren't important, but they are a step down the ladder of priorities, and we don't need to wring our hands quite as much over the remote possibility that a right to effective appellate counsel may have been violated even though a fair trial reached a correct result.  At the end of the argument, Keller reminds the Court that actual innocence is an exception all by itself without the need for Martinez or any extension of it.

During the petitioner's rebuttal, Justice Gorsuch raises the possibility that the Court may be creating incentives for intentional sandbagging.  Petitioner's attorney wins the Claude Rains Award for Mock Shock by noting indignantly that sandbagging that way would be unethical.  So?  That doesn't mean it won't be done, and it was done in a Tenth Circuit case that Justice Gorsuch participated in.  See pp. 18-19 of our Weaver v. Massachusetts brief.

Overall, I concur with Vladeck's assessment that it is looking good for affirmance.  Hopefully the Court will hold the line now and not extend Martinez any further.  Quite enough damage to finality has been done already.

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