Effective trial counsel after Martinez v. Ryan: focusing on the adequacy of state procedures.

• Author: Primus, Eve Brensike
• Position: Symposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. PROCEDURAL DEFAULT OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS II. THE IMPACT OF MARTINEZ V. RYAN III. THE STATES' REACTION TO MARTINEZ IV. THE PUSH TOWARD ADEQUACY DOCTRINE CONCLUSION INTRODUCTION

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright (1) remains largely unfulfilled. (2) Although experts agree on the problem, there is no consensus on how to approach solving it. Some argue for more funding for state defender organizations or better training for defense attorneys. (3) Others want to decriminalize petty offenses to lighten defender caseloads. (4) Still others believe that judicial intervention is needed to effectuate change. (5)

One thing experts agree on is that federal habeas corpus review of state criminal convictions (as currently structured) cannot catalyze reform given the many procedural obstacles that prevent state prisoners from getting into federal court. (6) The Supreme Court, however, has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. In Martinez v. Ryan, (7) the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective assistance of trial counsel claims in federal court. (8) More specifically, the Court held that a state prisoner who fails to properly raise an ineffective assistance of trial counsel claim in the first state collateral proceeding in which it could be raised may demonstrate cause to excuse his procedural default if he lacked effective state postconviction counsel to help him raise the claim.

This Essay will discuss whether Martinez marks the first step down a path toward reinvigorating Gideon. First, I will explain how the procedural default doctrine made it virtually impossible for most state prisoners to have their ineffective assistance of trial counsel claims heard in federal habeas corpus proceedings prior to Martinez. Then I will document how Martinez drastically expanded the cause-and-prejudice exception to procedural default and, in so doing, opened the federal doors to habeas petitioners alleging ineffective assistance of trial counsel.

Not surprisingly, many states are resistant to expanded merits review of ineffective assistance of trial counsel claims in federal habeas corpus proceedings. After documenting some of the ways in which states are restrictively interpreting Martinez, I will suggest that their formalistic reading of the Martinez holding may provoke habeas petitioners to file broader, systemic challenges to the adequacy of state procedures. As states attempt to recharacterize their procedures so as to avoid the implications of Martinez, they inadvertently set themselves up for challenges to the adequacy of those procedures. This shift is significant, I will explain, because of important differences in how cause and adequacy arguments influence state behavior. Whereas cause grounds are typically personal to the defendant, adequacy challenges are often used to expose systemic failures in a state's procedures. As a result, adequacy challenges have more potential to catalyze change in states' procedures.

In the end, whether through cause grounds or adequacy challenges, I will argue that Martinez has started an important dialogue between the federal and state courts about what procedures states need to have to give defendants an opportunity to vindicate their Sixth Amendment rights to effective trial counsel. (9) Whether that dialogue will result in more realistic opportunities for defendants to raise ineffective assistance of trial counsel claims in state courts remains to be seen, but the Supreme Court's willingness to intervene when the state courts prevent defendants from raising Sixth Amendment challenges is an important first step toward ensuring that those rights are honored in state criminal proceedings.

1. PROCEDURAL DEFAULT OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS

   Federal courts have an arsenal of procedural barriers that they use to deny almost all habeas petitions without ever addressing the merits of the underlying claims. (10) One of these barriers to review--procedural default--has been particularly nefarious in preventing prisoners from having their ineffective assistance of trial counsel claims heard in federal habeas cases. (11)

   Grounded in principles of federalism and finality as well as concerns about conserving resources, the procedural default doctrine requires federal habeas courts to respect adequate and independent state procedural grounds for denying federal constitutional claims. If a state prisoner fails to comply with the state's procedural requirements for raising a federal constitutional claim and the state courts refuse to address the underlying federal claim as a result, the federal courts will respect the state rules and similarly refuse to address the underlying federal claim. (12)

   There are two exceptions to the procedural default doctrine. First, if a defendant can show cause for failing to comply with the state procedural rule and prejudice to the outcome of the case, then the federal court will bypass the procedural default and consider the merits of the underlying constitutional claim. (13) Alternatively, if a defendant can demonstrate that he or she is actually innocent of the underlying criminal offense, the federal court will look beyond the procedural default to address the underlying constitutional claim. (14)

   Many defendants seeking federal habeas relief on the basis of an ineffective assistance of trial counsel claim run head-on into the procedural default doctrine. In most states, defendants are not given realistic opportunities to expand their trial records on direct appeal. (15) As a result, claims that require extrarecord development are typically reserved for state collateral review. (16) Because ineffective assistance of trial counsel claims are often predicated on what trial attorneys failed to do, they frequently require extrarecord development. (17) Consequently, the first realistic opportunity that most defendants have to raise an ineffective assistance of trial counsel claim is on collateral review. However, most states do not provide defendants with the assistance of effective counsel for postconviction review. As a result, many defendants fail to preserve their ineffective assistance of trial counsel claims in state court and face procedural defaults when they attempt to challenge the effectiveness of their trial attorneys in federal habeas proceedings.

   Until this past summer, the federal courts uniformly deemed these defendants' ineffective assistance of trial counsel claims waived absent a showing of actual innocence. No federal court believed that the ineffectiveness of state postconviction counsel in failing to preserve an ineffective assistance of trial counsel claim was sufficient cause to bypass a procedural default. After all, the Supreme Court had held that "cause" requires a petitioner to "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rules." (18) The Court had further stated that, under traditional agency principles, the actions of defense counsel are imputed to the client such that mistakes by defense counsel are not "external to the defense" unless the attorney error rises to the level of a constitutional violation. (19) Only when the state had failed in its constitutional obligation to provide effective representation was there an "objective factor external to the defense" that impeded the defendant's ability to comply with the state's rules. Because it was generally understood that there is no constitutional right to counsel beyond the first appeal as of right, (20) the federal courts unanimously held that the ineffectiveness of state postconviction counsel could not establish cause to excuse the procedural default of an ineffective assistance of trial counsel claim. (21)

   The federal courts' unwillingness to permit the ineffectiveness of state postconviction counsel to establish cause to excuse a default, coupled with the practice in a majority of states of pushing ineffective assistance of trial counsel claims into state postconviction review where defendants do not have meaningful representation, meant that most defendants had no realistic opportunity to raise ineffective assistance of trial counsel claims. This was particularly problematic given statistics revealing structural problems in indigent defense delivery systems throughout the states. (22) Defendants were being convicted of crimes and condemned to prison having never met their appointed counsel until the day of their plea. (23) Trial attorneys readily admitted that they did not have time to investigate their cases. (24) Yet most defendants had no real opportunity to argue that their bedrock right to effective counsel had been violated and that, as a result, their trial was fundamentally unfair.

   To make matters worse, the operation of the procedural default doctrine meant that a defendant who had an ineffective trial attorney, an ineffective appellate attorney, and an ineffective state postconviction attorney was less likely to obtain federal review than a defendant who had an effective lawyer at any of those stages. In short, the more ineffective lawyers a state prisoner had, the less likely he was to obtain federal habeas review.

   Maybe the perceived unfairness of this situation motivated the Court to take action, or perhaps it was the inability of most defendants to ever challenge their trial attorneys' performance despite overwhelming evidence of structural problems in indigent defense delivery systems in the states. Whatever its reasons, the Supreme Court recently...