Why only Gideon? Martinez v. Ryan and the "equitable" right to counsel in habeas corpus.

• Author: Uhrig, Emily Garcia

ABSTRACT

In 2012, the U.S. Supreme Court, in Martinez v. Ryan, recognized for the first time a limited right to assistance of counsel in postconviction proceedings. Unexpectedly, the Court traced this right to equitable, rather than constitutional, authority. Moreover, the right extends only to initial-review postconviction proceedings, i. e., proceedings that offer the first meaningful opportunity for an inmate to raise the claim at issue. Likewise, the right extends only to substantial claims of ineffective assistance of trial counsel.

The Court's depiction of this limited right to postconviction counsel as "equitable " avoided the pitfalls that would have been posed by the recognition of a constitutional right to counsel. Specifically, as an equitable right, states are not required to provide affirmative assistance of postconviction counsel. Rather, a state may simply implement the right at the back end of postconviction proceedings by waiving any default of a substantial trial ineffective assistance of counsel that arises as a result of the petitioner's pro se status or postconviction counsel error. Additionally, the Court sidestepped the infinite-continuum-of-habeas dilemma that recognition of a constitutional right would present: if an inmate has a constitutional right to counsel in an initial-review collateral proceeding, he or she will also be entitled to effective assistance of counsel. And where constitutionally guaranteed postconviction counsel is constitutionally ineffective, the inmate must have a remedy--i.e., a second round of postconviction proceedings--to cure the prejudice. The same scenario plays out in each subsequent round of postconviction proceedings. The equitable right to counsel carries with it no such baggage. In short, the equitable right to counsel, at least on its face, is presented as the constitutional right's more flexible and much less complicated cousin.

This Article argues, however, that by limiting the relief provided by the equitable right to counsel only to substantial ineffective assistance of trial counsel, the Court drew a line that is unsustainable. The elevation in post- conviction enforcement of claims derived from Gideon v. Wainwright over all other substantial claims of constitutional error finds no support in the history and function of the Great Writ. Rather, if equity requires a remedy where postconviction counsel fails to raise a Sixth Amendment ineffective assistance of trial counsel claim and thus defaults the claim in federal court, it also demands relief where counsel fails to present any other substantial constitutional violation that compromises the fundamental fairness or the accuracy of the criminal process.

INTRODUCTION

In October 2011, in Martinez v. Ryan, (1) the U.S. Supreme Court granted certiorari on one of the most significant unresolved issues in right-to-counsel jurisprudence: whether an inmate has a constitutional right to assistance of counsel in postconviction proceedings for claims for which postconviction litigation offers the first meaningful forum for judicial review. But rather than resolve the issue, the Court, in a 7-2 ruling, circumvented it entirely by announcing for the first time a more limited, "equitable" right to postconviction counsel. (2) By design, this equitable right extends only to substantial claims of ineffective assistance of trial counsel, rather than the universe of claims cognizable in postconviction proceedings. Despite the storied role of equity in habeas corpus, the Court's ruling in Martinez was both astonishing and unprecedented. Indeed, in a strongly worded dissent, Justice Scalia questioned the majority's attempt at crafting a limited "equitable" right to postconviction counsel for ineffective assistance of trial counsel claims only. (3) He argued, with little explication, that there is no defensible basis for limiting this newly minted right to counsel to ineffective assistance of trial counsel claims. (4) As with its constitutional counsel, if equity demands assistance of counsel for ineffective assistance of trial counsel claims, it likewise demands such assistance for other constitutional claims cognizable in federal habeas. As such, despite the majority's assertion to the contrary, Justice Scalia declared that, in the end, there is no difference between the "equitable" right and the long sought after constitutional right to postconviction counsel. (5) This Article responds to Justice Scalia's provocative critique of the Court's decision in Martinez and evaluates whether this equitable right to counsel should extend to other constitutional claims cognizable in federal habeas, at least in the context of procedural default doctrine.

In a prior article, A Case for a Constitutional Right to Counsel in Habeas Corpus, (6) I argued that the due process and equal protection interests that underpin the well-established right to counsel on direct appeal also warrant recognition of a constitutional right to counsel in postconviction proceedings that provide the first opportunity to litigate the claim at issue. (7) The Supreme Court refers to these proceedings as "initial-review collateral proceedings." (8) Typically at issue in such proceedings are claims that derive from facts outside the scope of the trial record, such as allegations of ineffective assistance of counsel and prosecutorial misconduct. The most difficult obstacle to recognition of a constitutional right to counsel in initial-review collateral proceedings is the prospect of an infinite continuum of postconviction proceedings. Specifically, if an inmate has a constitutional right to counsel in an initial-review collateral proceeding, (9) he will also be entitled to effective assistance of counsel. And where constitutionally-guaranteed postconviction counsel is constitutionally ineffective, the inmate must have a remedy--i.e., a second round of postconviction proceedings--to cure the prejudice. The same scenario then applies to each subsequent round of postconviction proceedings. In A Case for a Constitutional Right to Counsel in Habeas Corpus, I argued that the remote potential of such a scenario does not justify extinguishing an otherwise compelling constitutional right. (10)

In Martinez v. Ryan, the U.S. Supreme Court resisted recognition of a constitutional right to counsel in initial-review postconviction proceedings. (11) Instead, the Court recognized a limited "equitable" right to counsel in postconviction proceedings. (12) In so doing, the Court was able to conclude that ineffective assistance of postconviction counsel may provide "cause" to excuse the procedural default of certain claims resulting from attorney error or lack of counsel altogether. (13) The Court limited its holding to substantial, otherwise-defaulted claims of ineffective assistance of trial counsel for which postconviction proceedings provide the first forum for review. (14) On its face, the decision leaves without remedy all other claims defaulted by postconviction attorney error, e.g., those involving allegations of ineffective assistance of counsel on direct appeal or Brady v. Maryland violations.

In many respects, what the Court did in Martinez was quite ingenious. If recognized, a constitutional right to counsel in initial-review postconviction proceedings would have supplied the requisite cause to excuse a procedural default caused by postconviction counsel's ineffectiveness, as defined by Strickland v. Washington. (15) But as discussed, such a right would also generate a freestanding right to effective assistance of counsel, which, if denied, would require another round of postconviction process to remedy. But by starting at the back end analytically, i.e., simply declaring on equitable grounds that the identical ineffectiveness--as defined by constitutional jurisprudence no less--provides "cause" to excuse a default, the Court leapfrogged over finding the constitutional right. In so doing, the Court avoided the infinite-continuum-of-habeas dilemma. This is particularly stunning doctrinally because, in recognizing the equitable right to counsel for initial-review of ineffective assistance of counsel claims, the Court relied entirely on the equitable principles that undergird the constitutional right to counsel. Hence, Justice Scalia observed in dissent that there is no meaningful distinction between the substance of this newly recognized equitable right to counsel and a constitutional one. (16)

What remains difficult to reconcile with the role and jurisprudence of the writ of habeas corpus--the Great Writ of Liberty--is the Court's unequivocal limitation of its decision to cases in which the claim sought to be raised in postconviction review is ineffective assistance of trial counsel. In dissent, Justice Scalia dismisses this limitation as unsustainable, arguing that once accepted, the Court's reasoning must necessarily extend to all claims for which postconviction proceedings provide the first forum for review. (17) Though Justice Scalia does not fully articulate his position, I agree that the majority's limitation is analytically vulnerable. Inevitably, if equity demands a remedy where postconviction counsel fails to raise a Sixth Amendment ineffective assistance of trial counsel claim and thus defaults the claim in federal court, it should likewise demand a remedy where, for example, counsel fails to argue a substantial Brady v. Maryland claim, (18) despite learning postconviction that the prosecutor withheld material exculpatory evidence from the defense.

But to achieve such parity in the availability of relief under the writ of habeas corpus requires assessment of both the role of the writ in common law and the stature and force of a criminal defendant's Sixth Amendment right to counsel in the first instance. This Article is the first to offer such an assessment (19) and is structured as follows: Part I briefly reviews the relevant right to...