By Gray R. Proctor
Greetings! I want to talk about an issue in federal habeas corpus review, specifically procedural default. A recent Supreme Court case might have an unexpected effect: allowing defendants to choose whether to bring their claims of ineffective assistance of counsel – and perhaps other claims that cannot be brought at trial or on direct appeal – directly in federal court, without going through Florida state court in a 3.850 motion or similar device. I’ll explain the case, what it can definitely do, what I think it might do, and how that might help you. Accordingly, this month I need to open with something you might expect from an attorney: a disclaimer. This column is not legal advice. I make no prediction about how any court will apply the law to your case. Rely on the opinions I express here at your own
On March 20, 2012, the Supreme Court decided Martinez v. Ryan.1
Changing the law for most federal habeas petitioners, Martinez established that if the petitioner had no attorney or had an ineffective attorney on state postconviction review, the petitioner’s failure to bring certain claims will no longer result in procedural default (explained below). Martinez applies only to those claims that could not have been brought at an earlier stage of criminal proceedings when the petitioner did have a right to counsel. I use the example of ineffective assistance of counsel in this column, but there will be others. I may consider which other claims could benefit from Martinez in a future piece. I also do not consider the role of Martinez for federal prisoners bringing their §2255 motions, but it seems to me that it could allow them to bring new claims on appeal from the denial of their § 2255 motions.
Prior to Martinez, federal habeas courts had held that because no right to counsel exists after direct appeal, these claims were defaulted if not brought in state court even if counsel made an egregious error. To recap the events leading to the Supreme Court decision: Proceeding pro se on federal habeas review of his Arizona state conviction, Luis Martinez brought an ineffective assistance of counsel claim that had not been presented in Arizona postconviction proceedings below. The state argued that Martinez’s claim was therefore procedurally defaulted on habeas review.1
Martinez countered by arguing that his claim fell within the “cause and prejudice” exception to
procedural default because it wasn’t his own fault that the claim hadn’t been raised. The cause here: Martinez’s postconviction attorney2 failed to raise the ineffective assistance claim in state courts.
The state’s reply, well supported by existing case law, 3 was that ineffective assistance of counsel couldn’t serve as “cause” for claims not brought on collateral review.4
Existing law provided that where a right to counsel exists, the Sixth Amendment “requires that responsibility for the [procedural] default be imputed to the State” rather than the petitioner.5
Without such a right, a petitioner was bound by the acts of the attorney, who was deemed to be his agent just as in a civil case.
Martinez lost in the district court. On appeal, he argued that he was entitled to effective assistance of counsel on collateral review, at least with respect to his claim of ineffective assistance of trial or appellate counsel, because he could not have brought that claim at trial or on direct appeal.6
Thus, he had never had any right to counsel’s assistance in bringing this particular claim. To quote from the Ninth Circuit’s opinion:
Martinez asserts that he is entitled to the effective assistance of counsel in connection with his first state petition for post-conviction relief. He asserts that a right to the assistance of counsel attaches to the presentation of a claim of error at the first tier of review, relying upon Halbert v. Michigan, 545 U.S. 605, (2005) and Douglas v. California, 372 U.S. 353 (1963). Martinez recognizes the general rule that “there is no right to counsel in state collateral proceedings,” see Coleman, 501 U.S. at 755, 111 S.Ct. 2546, but asserts that there might be an exception where "state collateral review is the first place a prisoner can present a challenge to his conviction." 501 U.S. at 755.
.... On the one hand, the Court's decisions in Halbert and Douglas recognized a federal
constitutional right to counsel in connection with a criminal defendant's direct appeal from his
conviction (or the equivalent of direct appeal). On the other hand, in Ross v. Moffitt, the Court
declined to recognize a right to counsel in connection with a criminal defendant’s pursuit of secondtier review. 417 U.S. 600 (1974).8
To briefly review the relevant law: Douglas established that the Equal Protection Clause guarantees effective
assistance of counsel on direct appeal, because “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”9
Halbert involved Michigan’s procedure granting its courts of appeal discretion to reject appeals of guilty
pleas. Although the Supreme Court had previously refused to extend the Sixth Amendment’s guarantee of effective counsel to appeals in state supreme court or the Supreme Court, 10 it held in Halbert that the right to counsel does extend to discretionary review which is “likely the only direct review the defendant’s conviction and sentence will receive.”11
To return to Martinez: the Ninth Circuit decided that “there is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constitute the first tier of review for an ineffective assistance of counsel claim.”12
To again quote that court:
This case is more like Ross than Halbert. In Ross, the petitioner had already received direct review of his convictions, and had already received the assistance of counsel in connection with that first appeal. Likewise, here, Martinez has already received direct review of his conviction and received the assistance of counsel in connection with that appeal. In Halbert, by contrast, the petitioner sought the functional equivalent of direct review, the first appeal of his conviction. Even if collateral review presents the first tier of review for Martinez' ineffective assistance of counsel claim, we conclude that Martinez' action is not analogous to a direct appeal — or the first opportunity for him to obtain review of his conviction — so as to entitle him to effective counsel.13
The Martinez court adhered to the existing law on the “cause” element of the cause and prejudice exception to procedural default: that an attorney’s actions cannot serve to excuse default unless her client had a right to
counsel at the time of the error. Thus, Martinez lost again.
Martinez won in the Supreme Court, but not on the right-to-counsel issue. The Supreme Court recognized that it was still an open question, but found that “[t]his is not the case . . . to resolve whether that exception exists as a constitutional matter.” Instead, the Supreme Court changed the doctrine of procedural default:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
Just as it did in Maples v. Thomas14 earlier this term, the Martinez Court decided that an attorney’s misconduct in postconviction proceedings excused a procedural default, regardless of whether a right to counsel exists.
Forget for a moment the question of whether there’s a constitutional right to counsel on collateral appeal. Your guess is as good as mine when that will be resolved or what the answer will be. Let’s talk about how Martinez can help you if you didn’t have appointed counsel on Florida postconviction review.
The obvious benefit goes to those of you who want to bring a new claim of ineffective assistance in federal court that you didn’t think of on Florida postconviction review. Most of you did not study the law until you were faced with filing your 3.850 or 3.800 motions, so you may have discovered new legal theories that didn’t occur to you during the first round of review. Or, new facts may have come to light that allow you to make claims that didn’t seem plausible before. These would have been procedurally defaulted before Martinez, but now you can probably bring them. If this describes you, you can skip the next two paragraphs and see how else this will help you obtain the benefits of fullscale de novo federal review of your claim – and possibly appointed counsel as well.
For those of you who have not yet filed a Florida postconviction motion, Martinez could also do something for you that you might not realize: if you’re not appointed an attorney on collateral review, Martinez may give you a meaningful choice between having your claims heard in state or federal court. I’ll explain why you might want to do that before, but first I want to warn you that deliberately failing to bring claims in state court is still a very risky strategy. Martinez is a new case, and federal courts haven’t decided what its limits are. Conceivably, federal courts could rule that if you “deliberately bypass” the state courts15 by failing to bring a claim that you know you could have brought, Martinez does not apply – and then your claim will never be heard at all.
That said, it seems clear to me that Martinez makes the federal court a viable forum when it applies. The reason is that if Martinez applies, there’s no lower court decision to contend with. Let me explain why that makes a big difference.
First of all, a Martinez-excused claim should be much more likely to receive an evidentiary hearing. 28 U.S.C. §2254 provides that petitioners who have “failed to develop the factual basis of a claim in State court” will not receive an evidentiary hearing unless the petitioner can show that no reasonable factfinder would have found the petitioner guilty if his constitutional rights had not been violated.16
“Failed” here doesn’t just mean that you didn’t do it; it means that it’s your own fault. A habeas petitioner “fails” to develop the factual basis of a claim when there exists “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”17
Martinez holds that it’s not your fault you didn’t bring a claim if you didn’t have counsel – at least, with respect to procedural default. The reasoning seems equally applicable to evidentiary hearings. If so, evidentiary hearings on Martinez-excused claims will be governed by the more generous standard of Townsend v. Sain:
[A] federal court must grant an evidentiary hearing to a habeas applicant under the following
circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there isa substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.18
You ought to be able to meet that standard. Even better, you’ll be appointed an attorney under the rules of habeas procedure.19
It is not 100% certain that you’ll be entitled to constitutionally effective assistance from that attorney,
but I think it extremely likely, and in any event it’s not certain that you won’t enjoy the Sixth Amendment guarantee from your federal habeas attorney.20
I leave it to you to decide whether the average attorney appointed for a federal habeas case will be better than the average attorney appointed in Florida state postconviction proceedings.
The other benefit pertains to questions of law. If you bring a claim in state courts and the state court gets it wrong, you’re in trouble, because the federal court can’t just fix it. Federal habeas courts are likely to be bound by that state court decision – especially for Strickland claims. For any claim “adjudicated on the merits in State court,” the standard of relief requires federal courts to find “a decision that was contrary to, or involved an application of, clearly established Federal law, as determined by the Supreme Court of the United States.”21
So if the state court decision is wrong, but not unreasonably wrong, you still lose. Strickland already gives counsel a presumption of effectiveness, leading the Court to speak of “the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”22
Because there is no state court decision to defer to, Martinez-excused claims can prevail if the district judge thinks they should. Also, if you would definitely win under Eleventh Circuit (federal court of appeals) law but might not under Florida law, avoiding the “as determined by the Supreme Court” requirement is an attractive option. If you brought your claim in state court and lost, case law from the Eleventh Circuit law would not apply.
These are my thoughts on Martinez so far. In addition to letting you bring your claim in federal court, it helps you avoid the parts of AEDPA23 that have crippled federal courts. Whether your claim is better heard in state or federal court is not possible to predict in a general sense, but you might decide that the possibility is worth the risk. As always, I wish you luck.
Note 1. 132 S.Ct. 1309 (2012).
Note 2. See, e.g., Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998) (applying doctrine of procedural default to claims by federal prisoners under 28 U.S.C. § 2255 that were not raised at trial or on appeal); Snowden v.
Singletary, 135 F.3d 732, 735-76 (11th Cir. 1998) (explaining that claims not “exhausted” in state court are procedurally defaulted if they could no longer be raised at the time the federal court consider a 28 U.S.C. §2255 petition).
Note 3. Arizona is one of a few states that appoint counsel for every first postconviction proceeding. Ariz. Rule Crim. Proc. 32.4(c)(2). Rule 3.111(b)(2) of the Florida Rules of Criminal Procedure allows appointment of counsel on postconviction review, but does not offer any criteria for deciding when counsel should be ppointed. Rule 3.851(b) makes appointment of counsel mandatory for postconviction proceedings in capital cases.
Note 4. Coleman v. Thompson, 501 U.S. 722, 753–754, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Note 5. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ("We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions").
Note 6. Murray v. Carrier, 477 U.S. 478, 488 (1986).
Note 7. Massaro v. United States, 538 U.S. 500 (2003) (explaining that “almost all jurisdictions prefer that ineffective assistance claims be presented on collateral attack”).
Note 8. Martinez v. Schriro, 623 F.3d 731, 736-37 (9th Cir. 2010). Following the quoted text is a useful review of the law
governing the right to counsel both at trial and on appeal.
Note 9. At 357.
Note 10. Ross v. Moffitt, 417 U.S. 600 (1974).
Note 11. Halbert v. Michigan, 545 U.S. 605, 609 (2005).
Note 12. 623 F.3d at 739-40.
Note 13. Id. at 740.
Note 14. Maples v. Thomas, ___ U.S. ___, 132 S.Ct. 912, 922-23, 181 L.Ed.2d 807 (2012) (finding cause and prejudice to excuse procedural default in capital case where the petitioner’s counsel destroyed the principal-agent relationship
by abandoning him without notice, but explaining that where no right to counsel exists, a petitioner is bound by the acts and omissions of his attorney under “well settled principles of agency law”) (quotation omitted).
Note 15. “Deliberate bypass” is an older standard for deciding whether a claim was procedurally defaulted. Fay v. Noia, 372 U.S. 391 (1963). This standard is no longer applied in habeas corpus. Wainwright v. Sykes, 433 U.S. 72 (1977). Nevertheless, it could be revived for petitioners who fail to bring a claim for the sole reason that they want to secure the benefits I discuss in this column.
Note 16. 28 U.S.C. § 2254(e)(2)(B) (emphasis added). In addition to this requirement, a petitioner must show that theclaim either relies on a new, retroactive rule of constitutional law or depends on facts that could not have been discovered earlier. 28 U.S.C. § 2254 (e)(2)(A).
Note 17. Williams v. Taylor, 529 U.S. 420, 432 (2000).
Note 18. 372 U.S. 293, 313 (1963)
Note 19. Rules Governing Section 2254 Cases in the United States District Court, Rule 8(c) (“§2254 Rules”) (“If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” (governing appointment of counsel for indents)).
Note 20. McGriff v. Dep’t of Corr., 338 F.3d 1231, 1235 (“If the Supreme Court had intended a § 2254 petitioner to have a more substantial right to counsel than those provided by the Constitution, we would expect to see language to that effect in the text of the rule. We find no such language in Rule 8(c). We therefore turn to the Constitution not for authority, but instruction.”).
Note 21. 28 U.S.C. § 2254(d)(1).
Note 22. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Note 23. The Anti-Terrorism and Effective Death Penalty Act, passed in 1996, significantly narrowed the scope of federal habeas review.
About the Author
Gray R. Proctor is currently on the Board of Directors for the Florida Postconviction Legal Aid Organization and practices law in Orlando, Florida, representing clients in criminal appeals and state and federal habeas corpus proceedings. Gray R. Proctor's legal career really began during his second year at Vanderbilt University Law School.
Professor Nancy King (co-author of West's Criminal Procedure treatise and Assistant Reporter for the Advisory Committee for the Federal Rules of Criminal Procedure) had just undertaken her groundbreaking empirical study of federal habeas litigation in district courts, and Gray was lucky enough to serve as a research assistant on that project. Over the course of the habeas project, Gray reviewed over 800 non-capital habeas cases and 100 capital habeas cases throughout the country, documenting which claims and defenses were raised and the eventual ruling. This study is cited by Justice Scalia in the Martinez dissent.
Professor King also served as faculty advisor for Gray's published senior thesis, "Ngo Excuses: Proving, Rebutting, and Excusing Exhaustion in Prisoner Suits after Woodford v. Ngo and Jones v. Bock," 31 Hamline L. Rev. 471. Professor King would later serve as Gray's co-author in “Post-Padilla: Padilla’s Puzzles for Review in State and Federal Courts,” 23 Fed. Sent. R. 239, an article about how Padilla's
ruling would have to be filtered through federal postconviction rules. His particular interest in Padilla is whether it will be applied retroactively; the Supreme Court heard oral arguments on this issue in Chaidez v. United States, and those who wish to place bets on how it will be decided should contact Gray directly.
Immediately after law school, Gray served as law clerk for the Hon. Brian Owsley in the U.S. District Court for the Southern District of Texas. Gray then moved to Richmond, Virginia, serving for two years as a pro se law clerk (drafting opinions in uncounseled prisoner filings) at the U.S. District Court for the Eastern District of Virginia, which is affectionately known as "the Rocket Docket" for its unusual
speed and efficiency.
Afterward, Gray served as a Staff Attorney for the United States Court of Appeals for the Fourth Circuit, drafting memoranda and opinions for appeals of criminal cases, postconviction proceedings, prisoner civil rights suits, and the occasional miscellaneous federal suit.
Gray left the Fourth Circuit to serve as deputy director of the American Bar Association's National Inventory of the Collateral Consequences of Conviction, a free, internet-based catalog of laws and regulations in every United States jurisdiction that impose a civil consequence due solely to a criminal conviction (think felon disenfranchisement). Gray continues to serve in that capacity under Director and former U.S. Pardon Attorney Margaret C. Love, balancing his commitment to that project with his appellate, postconviction, and civil rights law practice in Orlando, FL.
Gray R. Proctor, Esq.
1199 N. Orange Ave.
Orlando, FL 32804