State Habeas at Center Stage

By Brandon L. Garrett, a professor at the University of Virginia School of Law and Lee Kovarsky, an associate professor at the University of Maryland School of Law. Together they are writing a habeas corpus casebook, forthcoming next year from Foundation Press. Garrett is the author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Professor Kovarsky was a primary author of the American Bar Association’s Amicus brief in Martinez.

Last week, the Supreme Court’s two opinions requiring competent plea-bargaining counsel justifiably received considerable public and scholarly attention. A 7-2 decision in favor of the prisoner in a third case, Martinez v. Ryan, may nonetheless have a greater long-term impact on criminal process — with perhaps the most surprising outcome of the three. Martinez will improve the representation of prisoners at a downstream phase of criminal adjudication: during the murky process of state “post-conviction” review, often called “state habeas.”

An Arizona jury had convicted Louis Martinez of sexually abusing his eleven-year-old stepdaughter. His trial lawyer did not challenge DNA evidence the State presented, never called a rebuttal expert, and never objected to the prosecutor’s expert. Arizona — like many states — required Martinez to file his first Sixth Amendment challenge to the effectiveness of his trial lawyer in a state habeas proceeding. However, Martinez’s habeas lawyer filed a statement saying that Martinez had no viable Sixth-Amendment claim. After the time to file the claim elapsed, Martinez obtained a new lawyer, who filed a state habeas petition challenging the trial lawyer’s representation. The Arizona courts held that the claim had been forfeited. The lower federal courts also refused to consider the claim, citing to the state procedural default. (Federal habeas review is usually unavailable to a prisoner that has not complied with applicable state procedural rules.) In short, the inadequacy of his state habeas lawyer made it impossible for Martinez to enforce his right to an effective trial lawyer. The Supreme Court reversed, and held Martinez should have been given a chance to present the claim that his trial lawyer was ineffective. His inadequate representation excused his untimely state habeas filing.

What is state habeas review? It is a phase of criminal process that is usually sandwiched between direct state review of the conviction and federal habeas review. (We say “usually” because sometimes the direct review and state post-conviction phases overlap.) There is enormous variation in state post-conviction law, including the circumstances under which a prisoner is entitled to state post-conviction counsel. Prisoners must navigate an extraordinarily complex body of state criminal process either pro se or without a federal guarantee of effective representation. Moreover, some claims, such as ineffective-assistance-of-trial-counsel challenges, are not usually raised on appeal. The facts demonstrating a trial lawyer’s ineffectiveness usually lie outside the four corners of the trial transcript. Moreover, there is also often a conflict of interest on appeal — the trial lawyer and the appellate lawyer are often the same representative. State habeas process allows state courts to review the effectiveness of trial counsel without such problems, all before federal habeas process becomes necessary. Yet state habeas process, which usually produces nothing more than a summary order, is notorious for lacking procedural safeguards.

In Coleman v. Thompson, a polarizing 1991 decision involving the effects of inadequate post-conviction representation, the Supreme Court permitted Virginia to execute a man without considering the merits of claims that he forfeited in state post-conviction proceedings. Coleman forfeited them because his state post-conviction appeal was (arguably) filed one day late. The Court said that, because there is no constitutional right to a lawyer during state post-conviction proceedings, Coleman had to suffer the consequences of any mistakes his lawyer made. Coleman was executed without having a federal court decide his claim on the merits. (He claimed his innocence until the end, although DNA tests done years later confirmed his guilt.)

Last term, the Court raised the stakes for state habeas outcomes when it decided Cullen v. Pinholster. Pinholster attracted little mainstream attention, but it was earth-shattering for post-conviction claimants. Pinholster interpreted the federal habeas statute to restrict much federal merits review to evidence presented in state post-conviction proceedings. As a result, bad state post-conviction lawyering creates two major risks: (1) that the claim will be procedurally defaulted; or (2) it will be underdeveloped in a way that irreparably prejudices a federal merits determination. So much for the Warren-era principle of independent federal judicial review. (Justice Sotomayor — who is not-so-slowly emerging as the conscience of the Court on questions of criminal procedure — wrote a wonderful dissent in Pinholster.)  Pinholster has placed tremendous pressure on prisoners to develop facts and claims in state habeas — or to forfeit them once and for all. Recall, however, that most prisoners who bring state habeas petitions have no lawyer. In Martinez, the Court controlled some of the damage Pinholster caused. Although Martinez did not establish a constitutional right to a state post-conviction lawyer, it did establish that inadequate state post-conviction representation could excuse an otherwise-forfeited challenge to trial counsel’s performance. The Court also held that a pro se state post-conviction claimant — that is, one lacking a lawyer entirely — could also be excused from forfeiting a state post-conviction challenge to his trial representation.

The upshot is that Martinez ensures that, if shoddy lawyering (or having no lawyer at all) prevents adequate state post-conviction consideration of trial counsel’s effectiveness, then the prisoner still has a federal habeas forum to enforce the bedrock Sixth Amendment right. At the outset, we remarked that Martinez was surprising. It was a 7-2 decision, with Justice Kennedy writing. Only Justices Scalia and Thomas dissented. Justice Scalia took noisy exception to the Court’s attempt to split the baby — allowing inadequate state habeas representation to excuse a procedural default without actually declaring a right to counsel in that phase of the criminal process. Justice Scalia called the Court opinion a “monstrosity.” He was right to predict that the ruling will likely extend to other types of claims which cannot be brought during appeals. Since few prisoners have a state post-conviction lawyer (there is no constitutional right to one) and because even prisoners with lawyers are not constitutionally entitled to adequate post-conviction representation, many meritorious claims never receive anything like a ruling on the merits. Few prisoners can make the strong showing of innocence necessary to resuscitate the claim. Martinez relaxed this harsh combination of rules. The decisionmay pave the way for similar treatment of other claims that a prisoner cannot raise on direct review of a conviction.

Martinez will require states to choose between providing adequate state post-conviction counsel and litigating federal habeas claims. Because of Pinholster, however, the practical guarantee of some constitutional rights requires that the states be put to such a choice. We are currently preparing a habeas corpus casebook for publication, and Martinez will allow us to say much less about Coleman. Coleman still plainly applies to any claims that can be raised on direct appeal of the conviction; and maybe the Court will cabin Martinez to reach only claims of ineffective assistance of trial counsel.  Still, as state habeas now takes center stage as the phase where claimants must develop facts and claims, at least the Court is incentivizing states to provide thicker procedural protections. The Court did not say that there is a constitutional right to a sound state habeas process. However, the Court said that there is an “equitable” right in habeas permitting independent review of claims not adequately examined earlier, through no fault of the prisoner. Habeas corpus is, after all, supposed to be a broad, flexible source of judicial authority to review the custody of prisoners. Although Martinez is a step in the right direction, competent counsel should probably be available for other types of claims. State courts should be memorializing their constitutional decisions in written opinions. State post-conviction law should be simpler and more accessible. All parties to death penalty cases should have access to sufficient resources. Invigorated state habeas would benefit everyone. After all, state courts are equally bound to enforce the federal Constitution.