Rid of Habeas Corpus? How Ineffective Assistance of Counsel Has Endangered Access to the Writ of Habeas Corpus and What the Supreme Court Can Do in Maples and Martinez to Restore it

• Publication year: 2022

45 Creighton L. Rev. 185. RID OF HABEAS CORPUS? HOW INEFFECTIVE ASSISTANCE OF COUNSEL HAS ENDANGERED ACCESS TO THE WRIT OF HABEAS CORPUS AND WHAT THE SUPREME COURT CAN DO IN MAPLES AND MARTINEZ TO RESTORE IT

RID OF HABEAS CORPUS? HOW INEFFECTIVE ASSISTANCE OF COUNSEL HAS ENDANGERED ACCESS TO THE WRIT OF HABEAS CORPUS AND WHAT THE SUPREME COURT CAN DO IN MAPLES AND MARTINEZ TO RESTORE IT

HUGH MUNDY(fn*)

i. Introduction................................... 186

ii. the case of emma jean bilbrey............. 187

iii.a brief history of habeas corpus law.... 195

A. The Origins of Habeas Corpus Review for State Prisoners................................ 195

B. State Limitations on Access to Habeas Review: Exhaustion and Procedural Default........................................ 196

1. State Procedural Rules and the Exhaustion Requirement................................. 196

2. State Procedural Rules and ProceduralDefault...................................... 197

C.Overcoming Procedural Default: The Cause-and-Prejudice Standard................. 199

D. Procedural Default and Post-Conviction Appeal.......................................... 203

IV. Improving access to habeas corpus review by extending the right to counsel to first post-conviction proceedings.................................... 206

v. conclusion ..................................... 213

I. INTRODUCTION

The United States Constitution provides that "[t]he [p]rivilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it."(fn1) Under federal law, habeas corpus relief extends to state prisoners convicted in violation of the Constitution.(fn2) Despite the broad promise of access to habeas corpus relief, restrictive state procedural rules often rob habeas petitioners of the right to federal review of valid constitutional claims.(fn3) Indeed, in order to advance a constitutional claim in a federal habeas petition, the same claim must be timely raised and fully litigated during state trial, appellate, or post-conviction proceedings.(fn4) The consequences of failing to comply with state procedural rules are severe. With rare exception, a claim raised for the first time in a federal habeas petition is rejected without review on the merits.(fn5)

Frequently, a habeas petitioner's failure to raise a constitutional claim during state proceedings is the result of ineffective assistance of trial or appellate counsel.(fn6) While a petitioner may be blameless for failing to comply with a state procedural rule, the odds of mounting a successful challenge to the effectiveness of counsel are slim.(fn7) A petitioner must first demonstrate that her counsel's representation did not meet the constitutional minimum guaranteed under the Sixth Amendment-a vague and often arbitrary standard. In cases in which counsel's performance does not meet the constitutional threshold, the petitioner must then convince a court that her counsel's mishandling of the case adversely impacted its outcome. To further hamper a petitioner's plight, the Constitution does not guarantee the right to counsel to wage a post-conviction attack on the effectiveness of a trial or appellate lawyer. Thus, habeas petitioners, many of whom are indigent prisoners without access to counsel or adequate legal resources, must typically attempt to meet their high legal burdens alone. Even when a petitioner has counsel to help navigate the post-conviction labyrinth, the right-to-counsel limitation prevents challenges to the effectiveness of post-conviction counsel on federal habeas review.

In its upcoming term, the United States Supreme Court will revisit questions regarding state procedural barriers, ineffective assistance of counsel, and the right to counsel on post-conviction appeal in two habeas cases: Maples v. Thomas(fn8) and Martinez v. Ryan.(fn9) The decisions in both cases promise to have a lasting effect on access to habeas relief, either by providing new avenues to challenge the dismissal of petitions on procedural grounds or by further restricting access to federal review of constitutional claims. This Article will look at the impact of state procedural rules on access to habeas review by examining the case of convicted murderer, Emma Jean Bilbrey. In addition, this Article will outline the origins of habeas corpus law and the evolution of rules limiting access to federal review for state prisoners. Finally, in anticipation of Maples and Martinez, this Article will propose that extending the right to counsel to "first-tier" post-conviction review is necessary to ensure continued meaningful access to the Writ of Habeas Corpus.

II. the case of EMMA JEAN BILBREY

The case of Emma Jean Bilbrey offers a striking example of how a procedural default resulting from the ineffective assistance of counsel can thwart federal review of a fundamental constitutional issue. In January 1994, Bilbrey was convicted of the murder of U.J. Bryant and sentenced to life imprisonment.(fn10) In many ways, Bilbrey's conviction proved the culmination of a lifetime of trauma, illness, and instability. Bilbrey was born into poverty in rural Crossville, Tennessee.(fn11) From childhood, she struggled with serious learning disabilities.(fn12) Her elementary school records reveal an IQ of 66.(fn13) Bilbrey "completed only 38 days of third-grade before receiving a 'social promotion' to fourth grade at age twelve 'due to size and age.'"(fn14) She "dropped out of school after [the] fourth grade, and did not return."(fn15) Upon her incarceration, she read at a second grade level and was unable to add or subtract single digits.(fn16)

Bilbrey also suffered from depression, post-traumatic stress disorder, and bipolar disorder.(fn17) In her early teen years, she married an older man who moved her to Dayton, Ohio.(fn18) She had her first child a year later and two more before her eighteenth birthday.(fn19) In Dayton, she worked as a "bar maid" and a "go-go girl" to earn money for her family.(fn20) After her husband abandoned the family, Bilbrey returned to Tennessee.(fn21)

During the late-1980s, Bilbrey began a romantic relationship with David Harvey, a petty thief and drug dealer.(fn22) Harvey moved into Bilbrey's home.(fn23) Once there, he drank and used cocaine heavily.(fn24) In 1987, a serious car accident left Bilbrey with severe leg injuries, largely homebound, and in constant pain.(fn25) Over the next two-and-a-half years, she suffered through multiple surgeries resulting from the accident.(fn26) On March 29, 1990, a final procedure removed plates and screws in her leg.(fn27)

On April 14, 1990, Bilbrey was still recovering from her latest operation and walking with crutches.(fn28) That evening, she rode in Harvey's car to a small grocery story in nearby Mayland, Tennessee.(fn29) Once there, Harvey made a call from a pay telephone.(fn30) The couple then drove less than a mile to a rural two-lane road that snaked around a small creek.(fn31) Harvey pulled the car onto the shoulder of the road, activated the hazard lights, and opened the hood.(fn32) When Bil-brey questioned Harvey's actions, he replied that he was "waiting on [a] guy to bring him some cocaine."(fn33)

Minutes later, another car approached and stopped.(fn34) Harvey got out of the couple's car while Bilbrey remained inside.(fn35) Within moments, shots were fired and Harvey hastily returned to the car.(fn36) The couple went to drink at the Red Dog Saloon, a local bar, and then fled to Dayton, Ohio.(fn37) The following morning, a sheriff's deputy discovered the body of U.J. Bryant-Bilbrey's brother-in-law.(fn38) Bryant had been shot multiple times.(fn39) His wallet was missing.(fn40)

An investigation led police to Harvey and Bilbrey. The bartender at the Red Dog Saloon said that Bilbrey appeared shaken when the couple arrived.(fn41) Bryant's daughter reported that on the night of the murder, Bryant told her that Harvey's car had broken down and he was going to assist the couple.(fn42) The police also learned Bryant was known by friends and family to carry significant amounts of cash on his person.(fn43)

For two weeks, the couple hop-scotched through Ohio and Kentucky, staying in roadside motels and squandering Harvey's take from the robbery.(fn44) During the trip, Harvey made several threats that he would harm Bilbrey if she discussed the crime with anyone.(fn45) After two weeks, they returned to Crossville.(fn46) On April 30, 1990, the couple was arrested and charged with the robbery and murder of Bryant.(fn47)

Initially, Harvey denied killing Bryant.(fn48) At a post-arrest interview, Bilbrey also denied any involvement in the murder.(fn49) In subsequent months, however, Harvey made several sworn statements, all of which gave conflicting accounts of the crime.(fn50) Harvey first stated to the police that neither he nor Bilbrey killed Bryant.(fn51) Approximately one month later, he stated that he killed Bryant at Bilbrey's request but that Bilbrey did not leave the car.(fn52) Six weeks later, Harvey stated that he killed Bryant in self-defense but that Bilbrey was not involved.(fn53) Harvey also admitted that he had given the police "two [prior] false statements about the crime."(fn54)

Two months later, Harvey again changed his statement, swearing that he shot Bryant without prompting from Bilbrey-though she assisted with the ensuing robbery.(fn55) Then, in the...