An Overlooked Consequence: How Shinn v. Ramirez Paves the Way for New State Collateral Proceedings.

• Author: Valente, Sergio Filipe Zanutta

Introduction I. Doctrinal Background on the Right to Effective Assistance of Counsel A. Effective Assistance of Counsel B. Collateral Review Overview C. A Right Deferred II. An Unconstitutional Situation A. The Sixth and Fourteenth Amendments Entitle Criminal Defendants to Raise IAC Claims About Their Direct Review Counsel 1. The Sixth Amendment requires defendants have a right to raise IAC claims regarding their appellate counsel 2. The Fourteenth Amendment's procedural due process requires defendants to have a right to raise IAC claims regarding their appellate counsel B. The Constitution Entitles Defendants to Present Evidence in Support of Their IAC Claim C. Defendants Are Entitled to Constitutionally Competent Counsel in State Habeas Proceedings that Are the Initial Review of Trial Counsel's Efficacy III. What Comes Next? Conclusion Introduction

The Supreme Court's recent habeas corpus decision in Shinn v. Ramirez included a blistering dissent and sparked a fierce outcry from habeas experts. (1) Commentators described the impact of the decision as "nightmarish" (2) and "Orwellian." (3) But these reactions overlook how the decision interacts with existing doctrine and what the decision portends for state procedures. This Note takes up those questions and concludes that, while Shinn closes the door to federal court, it opens the path for state remedies.

Shinn and its predecessors address a complex procedural issue. (4) Defendants in criminal cases have a constitutional right to counsel at trial and on their first appeal--sometimes called direct review. (5) When defendants have a constitutional right to counsel, they may raise an ineffective-assistance-of-counsel (IAC) claim, challenging the effectiveness of their representation. (6) And if the counsel's performance fails the requisite standard, defendants are entitled to a new trial. (7) Thus, on direct review, a defendant may challenge the efficacy of their trial counsel, and they are entitled to the effective assistance of appellate counsel while they do so. (8)

But Arizona and six other states require defendants to postpone filing IAC claims about their initial trial counsel until the beginning of state habeas proceedings (also referred to as "collateral review"). (9) In other words, these states bar defendants from raising IAC claims until after their direct appeal. (10) However, there is no constitutional right to counsel under Gideon v. Wainwright and its progeny after direct review. (11) Defendants challenging IAC by trial counsel in states like Arizona thus proceed without a constitutional guarantee of the assistance of counsel. (12) This means that even if a defendant's trial counsel were unconstitutionally ineffective, the defendant has no right to a free attorney to help them prove it. Moreover, even if they have the means to secure habeas counsel, there is no constitutional guarantee that the habeas lawyer they hire to challenge the performance of their trial counsel must be effective. (13) If the lawyer raises the defendant's trial-based IAC claim ineffectively, the defendant has no remedy. (14) This procedural rule in states like Arizona is particularly consequential because researchers estimate that defendants raise IAC claims in nearly half of postconviction proceedings. (15)

The lack of a constitutional right to counsel when raising a trial-based IAC claim can also affect a defendant's ability to raise other claims in subsequent proceedings. If the IAC claim is not raised in state habeas, it typically leads to procedural default, precluding review of the claim in a federal petition under 28 U.S.C. [section] 2254 after state habeas proceedings conclude. (16) Prior Supreme Court precedent held that in such a situation the ineffectiveness of state habeas counsel, in failing to raise the ineffectiveness of trial counsel, could excuse procedural default. (17) Shinn altered this arrangement, functionally extinguishing defendants' ability to raise such claims in federal court, albeit without modifying the law of procedural default. (18) In Shinn, the Court held that, even if the ineffectiveness of state habeas counsel is a valid excuse for failing to raise an IAC claim, 28 U.S.C. [section] 2254(e) bars federal district courts from holding evidentiary hearings and receiving new evidence in support of the IAC claim. (19) Without any ability to provide new evidence in support of their IAC claims, there is little chance defendants can successfully litigate the issue. (20)

Effectively litigating IAC claims is vitally important to defendants' chances of relief. Roughly 50% of postconviction cases involve IAC claims, (21) and 53% of terminated capital cases and 13% of terminated noncapital cases involve claims rejected because of procedural default--a result a successful IAC claim could prevent. (22) While defendants would normally be able to raise IAC claims regarding their initial trial counsel with the effective assistance of counsel, state procedural rules deferring the claims to habeas review mean that defendants in at least seven states cannot. (23) Procedural default impedes them from vindicating their constitutional right to counsel--as well as many other rights--because, ironically, they have no right to effective assistance of counsel to help them raise the claim. Although this Note focuses on the seven states that completely bar litigating IAC claims on appeal--Arizona, Arkansas, Indiana, Louisiana, Tennessee, Texas, and Virginia--the logic could extend to the vast majority of states, which bar IAC claims during direct review in most cases. (24)

Commentators have generally addressed the same issue the Shinn dissent emphasized: The decision severely diminishes access to relief for IAC in federal court. (25) This is certainly important, but in their rush to condemn the Court's opinion on this ground, commentators overlooked the opinion's implications for state collateral review. I argue that in states like Arizona, which defer IAC claims to state habeas proceedings, the Constitution affords defendants the right to a single forum to raise their trial IAC claim with the assistance of effective counsel. Essentially, the Constitution protects their rights just as it does in states which do not defer IAC claims to state habeas. In states that do not defer IAC claims, a defendant has the right on direct review (1) to raise an IAC claim regarding their trial counsel and (2) to raise that claim with the constitutional guarantee of the effective assistance of their appellate counsel. But in Arizona and states like it, the first right is deferred to state habeas while the second right is extinguished because there is no constitutional right to effective assistance of counsel in state habeas proceedings. Therefore, where state habeas is the first opportunity to raise a trial-based IAC claim, and state habeas counsel fails to raise (or fails to adequately raise) a meritorious trial-based IAC claim, there must be a subsequent forum for the defendant to challenge that failure. (26) Because Shinn effectively closes the door to federal courts for such claims, the constitutional obligation falls on states to create adequate procedures to protect the right to counsel.

The remainder of this Note proceeds as follows. Part I covers the background of Sixth Amendment doctrine and postconviction relief leading up to Shinn. Part II, proceeding in three distinct steps, explains why the lack of access to a forum to litigate trial IAC claims with the assistance of counsel violates the Constitution. First, Part II.A reasons that the Sixth Amendment and procedural due process under the Fourteenth Amendment afford criminal defendants the right to challenge the efficacy of their counsel in at least one forum. Second, Part II.B explains that the constitutional remedy must include the opportunity to present evidence in support of the claim. Third, Part II.C argues that while a state may reasonably defer a defendant's right to challenge the efficacy of their counsel to the state's postconviction review process, it cannot do so without affording them effective counsel in that proceeding. The right to counsel encompasses the right to have that counsel raise legal defenses--including IAC. (27) If all three steps are correct, Arizona's procedural rule--and similar procedural rules in other states--are currently unconstitutional and require additional state procedures to remedy the violation. Finally, Part III considers the implications of the "unconstitutional situation" created by the combinations of the Supreme Court's statutory interpretation of 28 U.S.C. [section] 2254(e) in Shinn and Arizona's procedural rule.

The existing literature is replete with arguments in favor of a postconviction constitutional right to counsel. (28) At least one scholar argues that access to postconviction counsel is a moral imperative. (29) Others contend the Constitution enshrines the right in a variety of provisions, including the Due Process Clause, Equal Protection Clause, Suspension Clause, and Eighth Amendment. (30) These arguments, however, often directly contravene existing Supreme Court precedent, and there is no indication the Court is interested in changing course to recognize a broad postconviction right to counsel. The Court stated in Pennsylvania v. Finley: "We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today." (31) The lower courts have uniformly interpreted Finley to reject a blanket constitutional right to postconviction counsel. (32) Thus, whatever the merits of a constitutional right to postconviction counsel in all cases, it is simply unsupported by current law.

Other scholars put forth a narrower argument--closer to the one advanced here--that a constitutional right to counsel in postconviction proceedings exists when it is the first forum in which a...