Pinholster's hostility to victims of ineffective state habeas counsel.

• Author: Utrecht, Jennifer

TABLE OF CONTENTS INTRODUCTION I. THE DISCREPANCY CAUSED BY MARTINEZ V. RYAN AND CULLEI PINHOLSTER A. 28 U.S.C. [section] 2254: Comity, Federalism, and Finality B. Exhaustion, Procedural Default, and Martinez v. Ryan C. 28 U.S.C. [section] 2254(d) and Cullen v. Pinholster D. The Intersection of Martinez and Pinholster II. STRATEGIES FOR PETITIONERS TO EXPAND THE RECORD IN FEDERAL COURT A. No Adversarial Proceedings Without Effective Assistance of Counsel: A Suspension Clause Challenge B. Avoiding 28 U.S.C. [section] 2254's Trigger: Arguing that the Clain Has Not Been "Adjudicated on the Merits" III. THE WAY FORWARD: ABEYANCE AND ADEQUACY CONCLUSION INTRODUCTION

Elrick Gallow spent nearly thirteen years attempting to vindicate his constitutional right to effective counsel. (1) On the second day of Gallow's 1999 trial, his attorney Ahmad Muhammad requested a recess just before the victim took the stand. (2) Unbeknown to Gallow, Muhammad suffered from depression, anxiety disorder, and Post-Traumatic Stress Disorder; he withheld impeachment evidence regarding the victim from Gallow because he had a close personal relationship with the victim's mother; he had stopped practicing law entirely; and he only agreed to represent Gallow in order to convince Gallow to plead guilty. (3)

On September 1, 2000, Gallow and his new counsel, Dele Adebamiji, filed a motion to withdraw his guilty plea. (4) The motion asserted that his previous attorney had a conflict of interest and that his guilty plea was involuntary. (5) There was clear evidence of this conflict of interest. Muhammad gave a sworn statement before the Louisiana State Disciplinary Board that he had been "really hurt by what [Gallow] had done" and felt that Gallow "should have been punished" for his crimes. Muhammad testified, "I became his, 'Judgor' instead of his counsel." (6) Muhammad was subsequently disbarred--in part for his performance in this case. (7)

Adebamiji completely failed to develop a record of Muhammad's conflict. He did not submit the disciplinary evidence into the record. (8) He failed to subpoena Muhammad for the initial hearing on the matter. (9) The court continued the matter for a later hearing so that Muhammad could be brought to court, but neither Muhammad nor Adebamiji appeared for the later hearing. (10) Ultimately, the state court dismissed the action with prejudice for failure to present any evidence. (11)

After attempting to correct this problem in the Louisiana state system for years, (12) Gallow filed a federal habeas petition under 28 U.S.C. [section] 2254, hoping to expand the record of his proceedings to include the affidavits from the Louisiana Disciplinary Board. (13) Section 2254, a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), (14) provides for federal review of state court convictions. A federal court may grant habeas relief when a state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or when it "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." (15) The federal district court denied Gallow's petition. (16) The Fifth Circuit affirmed, holding that it could not consider the testimony before the disciplinary board because it was not in the state court record. (17) Due to the ineffective assistance of his state habeas counsel, Gallow was without relief for the violation of his Sixth Amendment rights.

Gallow's case and others like it (18) illustrate that the intersection of Martinez v. Ryan and Cullen v. Pinholster creates an anomaly in AEDPA litigation: petitioners who do not raise claims in state court proceedings at all can receive a more favorable standard of review in federal courts. If Gallow's state habeas counsel failed to raise ineffective assistance of trial counsel at all, Gallow could have presented the affidavits from the disciplinary board to the federal court. Ordinarily, federal courts may not hear 28 U.S.C. [section] 2254 claims that petitioners failed to raise in state court. (19) Under Martinez v. Ryan, (20) however, federal courts can excuse the default of a claim of ineffective assistance of trial counsel when the failure was caused by ineffective assistance, or total absence, of state habeas counsel. (21) Of course, Adebamiji did raise the claim before the state court, but he failed to present any evidence. (22) As such, under the Supreme Court's interpretation of [section] 2254's standard of review in Cullen v. Pinholster, (23) the federal court's review of the matter was limited to the record before the state court. (24) This presents a serious procedural roadblock for petitioners like Gallow, who have meritorious constitutional claims, but who have never received a fair process to vindicate these claims because of ineffective state habeas counsel.

The pervasive and systemic problems with current indigent defense (25) render it possible to have a chain of bad attorneys. While Gallow's story may be extreme, it is certainly not uncommon. (26) In addition, this abnormality incentivizes "sandbagging," the practice of deliberately failing to raise claims in state court in order to receive more favorable federal review later, which the current procedural default doctrine was designed to avoid. (27)

This Note argues that in light of the equitable principles discussed in Martinez, courts should be loath to ignore pertinent evidence that was not brought before the state court solely because the state habeas counsel was incompetent. Part I explains the legal background surrounding this controversy and how the intersection of Martinez and Pinholster alters the incentives for [section] 2254 petitioners. Part II details arguments that may help a petitioner whose state habeas counsel failed to competently develop the record to overcome Pinholster's hostility and to develop a complete record before the federal court. Part II also attempts to explain the circumstances and jurisdictions in which these arguments will be the most successful. Part III argues that courts, when faced with arguments that the record has been underdeveloped due to the ineffective assistance of state habeas counsel, should stay cases to allow state courts the opportunity to hear the case on a developed factual record. This process is consistent with the policies motivating AEDPA and allows petitioners to fully and properly utilize the adversarial system. Ultimately, Part III concludes, if states are unwilling to expand the record under these circumstances, petitioners should argue that courts should hear the federal claims de novo, because the states' procedures are systematically inadequate and hostile to federal rights.

1. THE DISCREPANCY CAUSED BY MARTINEZ V. RYAN AND CULLEN V. PINHOLSTER

   This Part details the tremendous impact that Martinez and Pinholster have had on AEDPA litigation under 28 U.S.C. [section] 2254. Section I.A describes [section] 2254 litigation generally. Section I.B explains how Martinez changed AEDPA's twin doctrines of exhaustion and procedural default--doctrines that have been used to prevent courts from even addressing the merits of a [section] 2254 petition. Section I.C illustrates the impact of Pinholster on a court's ability to address the merits of a state petitioner's claims. Section I.D argues that the intersection of these two recent Supreme Court cases, each grounded in different ideas of what federal habeas review is for, alters [section] 2254 petitioners' incentives.

   1. 28 U.S.C. [section] 2254: Comity, Federalism, and Finality

      AEDPA was passed and signed into law in the immediate wake of the 1995 Oklahoma City bombing. (28) The centerpiece of the Act, now codified at 28 U.S.C. [section] 2254, "imposed [and] fortified ... obstacles" to federal habeas corpus review for state prisoners. (29) Prior to AEDPA, and "[a]s long as there have been federally enforceable protections for state criminal defendants in the United States," federal habeas corpus provided convicted state prisoners with "plenary review" of deprivations of federal rights. (30) AEDPA "dramatically altered" this review. (31)

      To begin, AEDPA imposed a series of procedural obstacles (32) that allow federal courts to dismiss petitions without ever reaching the merits of the constitutional claims. (33) AEDPA created the first federal habeas statute of limitations. (34) It altered the preexisting exhaustion requirement, preventing federal courts from considering unexhausted claims that were meritorious, (35) without a clear and express waiver from the state's attorney. (36) It limited appellate review by federal circuit courts, (37) and it substantially limited petitioners' ability to bring successive petitions. (38)

      It also codified limitations on a state prisoner's ability to challenge facts found by a state court in a federal evidentiary hearing. Under [section] 2254(e), a federal court "shall not hold an evidentiary hearing" when the petitioner "failed to develop the factual basis of a claim in State court proceedings" unless the applicant shows (1) that the claim relies on a previously unavailable "new rule of constitutional law, made retroactive to cases on collateral review," or "a factual predicate that could not have been previously discovered through the exercise of due diligence," and (2) that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." (39)

      Perhaps most significant, in [section] 2254(d), AEDPA codified a standard of federal review calling for great deference to state courts on legal issues and mixed questions of law and fact. (40) Thus, even after the petitioner has...