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Sunday, October 02, 2011

Maples and Martinez: Gideon for State Post-Conviction Review

The October 2011 Supreme Court term may deliver a watershed in criminal procedure, but the development remains largely unnoticed outside an enclave of highly-specialized habeas lawyers. The era in which the federal constitution doesn't apply in state post-conviction proceedings might be ending. On Tuesday, October 4, the Supreme Court will hear oral argument in Maples v. Thomas and Martinez v. Ryan* ("the October 4 cases"). The Court will consider whether the federal constitution entitles an inmate to a lawyer in the first proceeding in which (s)he can lodge a constitutional challenge, regardless of whether that proceeding is denominated as direct or collateral review. In other words, the Court is considering whether to constitutionalize a slice of state post-conviction review. 

If there is any doubt about the importance of the October 4 cases, consider the fact that 24 states and the federal government have signed briefs opposing that outcome.

Many of the most important constitutional challenges to a criminal conviction cannot be considered on direct (appellate) review, because they - by definition - are outside the scope of the trial record. This group of collateral challenges includes the most common post-conviction claim, that an inmate's trial lawyer was constitutionally ineffective (a "trial-phase IAC claim"). The reasons why inmates must press trial-phase IAC claims collaterally are intuitive: a trial lawyer won't litigate his/her own ineffectiveness on appeal, and even a substituted appellate lawyer is not equipped to litigate a trial-phase IAC claim without a reconstructed record. 

Trial-phase IAC claims are, by far, the most common post-conviction challenge, and they are particularly important in capital cases. Most states either permit or require an inmate to bring a trial-phase IAC claim in a post-conviction proceeding, and they do not permit or require that claim to be litigated on direct review of the conviction. But here's the big problem with siphoning all of the trial-phase IAC claims to post-conviction review - there exists no federal right to a lawyer in that proceeding. And if the IAC claim is inadequately lawyered on state post-conviction review, then it stands no chance on federal habeas review. The ironic result has been that the Sixth Amendment right to counsel - in many ways the bedrock feature of adversarial criminal adjudication - cannot be realized because inmates lack counsel to effectively enforce it. 

And it's a good thing the Court is taking this issue now. State post-conviction law has been a legal backwater for too long. In Pennsylvania v. Finley (1987), Murray v. Giarratano (1989), and Coleman v. Thompson (1991), the Court rather aggressively refused to constitutionalize state post-conviction review. Coleman, however, carefully reserved the question presented in the October 4 cases: whether inmates might have a right to an attorney if state post-conviction review is the first proceeding in which they can actually assert a trial-phase IAC claim. In light of the express reservation in Coleman, the doctrine is pretty indeterminate. 

Why is the Court looking at the issue now? Last term, in Cullen v. Pinholster (2011), the Court held that state prisoners may not use facts outside the state post-conviction record to argue that a state decision is legally unreasonable. In other words, the state habeas proceeding is now the ball game; federally-found facts cannot be used to show that the state decision was legally unreasonable. I think Pinholster was wrongly decided, but the Court does at least seem to be considering how that mischevious decision affects the stakes of state post-conviction litigation.

I can't confidently predict a result in the October 4 cases. While the Roberts Court has continued to marginalize federal habeas, it does so without the zeal of its Rehnquist predecessor. Specifically, the Roberts Court seems more sensitive to the most egregious failures of state post-conviction process.  In Holland v. Florida (2010), for example, the Court recognized that defective post-conviction representation may be a basis for equitable tolling of the federal habeas limitations statute - a limitations statute that already had a statutory tolling provision. (Chief Justice Roberts was in the majority, and Justice Alito concurred.) And Holland's representation wasn't just defective; it was appalling.  So too was the representation in Maples and in Martinez. If federal habeas outcomes (at least on legal unreasonability) may reflect no factual content outside the state post-conviction record, one would hope that inmates have adequate lawyers to argue their IAC claims in that forum.

*In the interest of full disclosure, I co-authored the ABA Amicus brief in Martinez.

Posted by Lee Kovarsky on October 2, 2011 at 01:16 AM | Permalink


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Thanks for the great -- and exceptionally clear -- discussion of the stakes involved for post-conviction review in Martinez. I admit that the case was off my radar. Good luck on the brief!

Posted by: Adam Zimmerman | Oct 3, 2011 12:16:31 PM

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