« A Big Test for “Big Waiver” | Main | Police Riot in a Failed City: On the Streets of St. Louis »

Monday, September 18, 2017

Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing

Earlier this summer, I helped write a cert petition for the US Supreme Court. The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf. Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001). And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards. And several federal district courts have started to question how they ought to assess these claims.

Even though there is a clear split and a strong case that the Arkansas Supreme Court has adopted an unconstitutional standard, the Supreme Court is unlikely to grant the cert petition. For one thing, the petition will be considered at the so-called “long conference,” which will take place on September 25th.  That is when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer.  Petitions that are considered at the long conference are less than half as likely to be granted than petitions considered during the Term. 

For another thing, although this case involves an important issue of federal constitutional law, it comes out of state court.  State criminal cases vastly outnumber federal cases—I’ve seen estimates that federal felony filings make up less than ten percent of all felony filings in the country.  But that is not reflected in the cases that the Supreme Court takes.  In the 2016 Term, for example, the Court decided 28 cases that involved criminal law, criminal procedure, or closely related topics (like Bivens actions involving law enforcement). Almost half of those cases (13 of the 28) involved federal law or federal prosecutions.

Of course, any cert petition faces an uphill battle.  The Supreme Court hears fewer than a hundred cases per year, and it receives thousands of petitions. But it is more than a little disheartening to know that these other, seemingly irrelevant issues, make a cert grant in the Thompson case so much less likely.

Posted by Carissa Byrne Hessick on September 18, 2017 at 09:04 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law, Judicial Process | Permalink


Thank you for sharing this. I am constantly trying to push the limits in post conviction cases regarding ineffective assistance at sentencing. Would you mind sharing your cert petition via email?

Thank you for considering.


Posted by: Justin Eisele | Mar 27, 2019 9:38:34 PM

One other thing: it occurs to me that there's a sort of loose symmetry between the error in Arkansas's rule and the error in the rule the Court rejected in Lee v. United States a month after you filed your petition. It's probably too loose a symmetry to be worth a supplemental filing.

Posted by: Asher Steinberg | Sep 18, 2017 4:23:16 PM

This sounds to me like a very important and deserving cert petition. The timing is unfortunate, though I wonder if you could have, a little manipulatively perhaps, avoided this problem by requesting extensions of the time to file from the circuit Justice, which I believe are generally granted quite freely, though Alito was the relevant circuit Justice at the time and how free he is with extensions, I don't know. But as I say, I don't know whether avoiding the Long Conference in that fashion is proper and you and the counsel of record are perhaps to be praised for not doing it. Anyway, this is the only way for them to directly review Arkansas's rule; it couldn't be reviewed in habeas because I take it you would concede that Glover doesn't clearly establish that it's wrong. That said, it's probably true that a petition out of the Fifth Circuit (or the Second, Third, Sixth or Tenth, if the government wanted to risk it) would have a better chance, though the sheer zaniness of Arkansas's rule is perhaps more attention-grabbing and demanding of review than what I assume (and hope!) is a less extreme rule in the Fifth Circuit. It would probably be a good idea to send this post, with a copy of the petition, to the curators at Scotusblog. I wish you and, of course, Mr. Thompson the best of luck.

Posted by: Asher Steinberg | Sep 18, 2017 4:07:39 PM

Not only is it terribly arbitrary, but the Arkansas Supreme Court has never justified it. I wrote about the rule (and the lack of justification) in this article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1373223

Posted by: CBHessick | Sep 18, 2017 12:57:53 PM

This is one of those arbitrary rules that make me hate the law: "Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence."

I simply don't get it. What does that have to do with ineffective assistance? There is no 1:1 connection between ineffective lawyering and the client getting the maximum sentence.

So much of the law is broad statements("Everyone is entitled to counsel") that are then undercut by arbitrary hurdles. It's so shameful to be in this profession.

Posted by: ChicagoD | Sep 18, 2017 11:55:32 AM

Post a comment