ESSAY CONTENTS INTRODUCTION I. MARTINEZ AND FEDERAL HABEAS REVIEW II. MARTINEZ AND STATE POSTCONVICTION REVIEW A. State Postconviction Review Before Martinez 1. Filing Rates 2. Counsel and Hearings 3. Relief B. State Postconviction Review After Martinez: The Forecast for Change 1. Filing Rates 2. Counsel and Hearings 3. Relief CONCLUSION: THE DISCONNECT BETWEEN POSTCONVICTION REVIEW AND INDIGENT DEFENSE REFORM INTRODUCTION
Last Term the Supreme Court unexpectedly expanded postconviction review of claims of ineffective assistance of trial counsel in three decisions: Martinez v. Ryan, (1) Lafler v. Cooper, (2) and Missouri v. Frye. (3) In Martinez, the Court announced a new equitable rule for federal habeas corpus cases, allowing merits review of a substantial claim of ineffective assistance of trial counsel that was not addressed during a petitioner's attack on his conviction or sentence in state court, if the petitioner lacked the effective assistance of counsel to raise it there. (4) In Lafler and Frye, the Court enlarged the definition of ineffective assistance itself, declaring that bad advice during plea negotiations can amount to ineffective assistance if it deprives the defendant of a favorable plea deal, (5) allowing more petitioners than ever before to raise a ineffectiveness challenge to their convictions in state postconviction and federal habeas proceedings.
All three cases have attracted attention, but this Essay addresses the consequences of Martinez in particular. Commentators have documented how feeble postconviction review has turned out to be in ensuring competent representation. (6) Some hope that the Martinez ruling will increase federal oversight of effective assistance in the states and enhance procedural protections in state postconviction review. (7) Justices Scalia and Thomas predicted in dissent that the decision would leave states no choice but to appoint counsel for all indigent petitioners in postconviction proceedings. (8) Others have warned that states may eliminate state postconviction review rather than take that step. (9) In this Essay I question these predictions and argue that the Court's effort to expand habeas review of ineffective assistance of counsel claims in Martinez will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases.
Drawing upon statistics about habeas litigation and emerging case law, Part I explains why Martinez is not likely to lead to more federal habeas grants of relief. Using new empirical information about state postconviction review, as well as post-Martinez decisions and anecdotal reports from the states, Part II further explains why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Conclusion argues that the limitations of postconviction review as a regulatory approach suggest the need to consider alternatives.
MARTINEZ AND FEDERAL HABEAS REVIEW
The rule in Martinez is not likely to raise the notoriously low rate of relief in federal habeas. Before Martinez was decided, less than 1% of noncapital habeas petitions were granted for any claim. (10) This is unlikely to change after Martinez for two reasons: few additional petitioners will receive merits review, and those that do remain unlikely to win.
Martinez expands only slightly a narrow exception to the "state procedural default" doctrine, which generally requires a federal court to dismiss, without addressing the merits, any constitutional claim that a state court has refused to address because of the petitioner's failure to comply with state rules. (11) Martinez allows a federal court to reach the merits of such "defaulted" claims, but only if the claim alleges the ineffective assistance of trial counsel (IATC), is "substantial," and was raised improperly or not at all in the petitioner's initial collateral review proceeding in state court. (12) But the exception is narrow indeed. As lower court decisions applying Martinez demonstrate, if a petitioner's claim was filed in federal court beyond the statute of limitations (13) or in a successive petition, (14) was defaulted on direct or collateral appeal rather than at the initial collateral proceeding, (15) or was raised by a petitioner who never sought state postconviction relief (16) or declined representation when he did, (17) the Martinez gateway to merits review remains closed.
More importantly, securing merits review in federal habeas is no magic bullet. Before Martinez, federal district courts were considering the merits of constitutional claims in approximately half of all noncapital habeas cases, and denying more than 99% of them. (18) And Martinez has not changed the reasons why federal judges deny almost all of the IATC claims they review on the merits.
Assume, arguendo, that petitioners lose at least some IATC claims on the merits because they lack counsel (only 7% have attorneys) (19) and do not receive evidentiary hearings (less than 1% receive hearings). (20) There is no sign in post Martinez decisions that Martinez has deterred judges from rejecting IATC claims without first providing counsel or hearings. Martinez did not lessen the fiscal pressures on the judicial branch, which pays for appointed counsel in habeas cases, nor did it create any right to counsel. And even though it is within a judge's discretion to permit a petitioner to develop new facts for claims dismissed rather than denied in state court, (21) federal judges after Martinez continue to deny IATC claims on their merits and without hearings when the petitioner was not diligent in developing the record in state court, (22) when his allegations are refuted by the record, (23) or when those allegations would be futile if believed. (24) Indeed, this was the outcome of Martinez's own claim on remand. (25)
Some have also predicted that by allowing judges to apply de novo review rather than "reasonableness" review for these otherwise defaulted claims, Martinez might increase the rate of relief. (26) But judges applying de novo review after Martinez are continuing to find allegations of ineffective assistance unsupported, implausible, and insubstantial, (27) just as they do when denying IATC claims raised by pro se federal prisoners in [section] 2255 cases using de novo review. (28) Strickland, as many have noted, is a very high bar, and Martinez did not lower it one notch.
Two other developments suggest that for those petitioners who make it through the Martinez gateway to merits review, winning IATC claims may become more difficult, not easier, in the years to come. The first is the creeping acceptance of negotiated waivers of the right to seek postconviction review of ineffective assistance of counsel claims. Judges are finding that such waivers bar later claims that an attorney provided constitutionally deficient representation both leading up to a guilty plea and after an agreement has been reached, and it is reasonable to assume prosecutors will embrace such a useful cost-saver whenever they can. (29)
Second, the Frye and Lafler decisions, announced shortly after Martinez and widely hailed as victories for indigent defendants, may, ironically, make it more difficult for prisoners to win IATC claims. Some judges have enthusiastically accepted the Court's invitation in Frye to "establish" at the plea colloquy "that the defendant has been given proper advice," (30) finding new ways to secure on-the-record statements from defense counsel that all plea offers were explained to the defendant and that the defendant was satisfied with his counsel's advice. (31) In courtrooms where judges are wary of either intruding into privileged communications or participating in plea negotiations, (32) prosecutors may obtain such proof on their own. After Lafler and Frye, some prosecutors in Tennessee report that they will not make any offer at all unless defense counsel agrees to sign a new form that states the offer terms and that the offer was conveyed to the defendant. (33) Before agreeing to any trial date, the defendant himself must sign that he "knowingly rejects the State's previous offer(s) and elects to set his/her case for trial," and defense counsel must sign that the defendant "has been advised of the State's offer(s) and the benefits and disadvantages of proceeding to trial." (34) Other prosecutors ask each defendant to sign a statement of satisfaction with his representation, or insist that all offers and responses be in writing with copies to the defendant. Armed with such proof, prosecutors can more easily repel any later IATC attack on its merits. (35)
MARTINEZ AND STATE POSTCONVICTION REVIEW
Even if federal courts do begin to grant more IATC claims after Martinez, there is little reason to expect state courts to provide more attorneys, hearings, or relief for these claims in their postconviction proceedings. Nor are states likely to withhold postconviction review and turn over enforcement to federal courts. Section II.A provides a preliminary empirical baseline for measuring potential changes in state postconviction litigation, and Section II.B explains why no such changes are likely to occur.
State Postconviction Review Before Martinez
State postconviction review is beginning to attract the attention of legal scholars. (36) Yet there has been no attempt to find out how many noncapital prisoners seek postconviction relief in state courts each year, much less how many of these cases actually involve counsel, a state response, fact-finding, or relief. (37) Without data, one can only guess what really goes on during this phase of the criminal process, and what effect a decision like Martinez might have on that process. The dearth of information is understandable: in some states, a request for postconviction relief is docketed like any other...