Trevino v. Thaler: falling short of meaningful federal habeas corpus reform.

Author:Law, Cristina

TABLE OF CONTENTS INTRODUCTION I. A BRIEF OVERVIEW OF FEDERAL HABEAS CORPUS REVIEW AND IATC CLAIMS BEFORE TREVINO A. Federal Habeas Corpus Review for State Prisoners B. Postconviction IATC Claims before Trevino 1. Gideon and Strickland 2. Limitations on Federal Habeas Corpus Review 3. The Path to Trevino: Coleman v. Thompson and Martinez v. Ryan II. TREVINO V. THALER A. Facts and Procedural History B. Trevino's Majority Opinion C. Trevino's Dissenting Opinion III. ANALYSIS OF CURRENT LAW A. Trevino's Broad Language B. Lower Courts Distinguishing and Rejecting Trevino IV. TREVINO'S IMPACT ON CAPITAL DEFENDANTS IS LIMITED WITHOUT A CONSTITUTIONAL RIGHT TO FEDERAL POSTCONVICTION COUNSEL IV. SUGGESTED APPROACH A. Overview of Georgia's Minority Approach B. Advocating for the Georgia Approach CONCLUSION INTRODUCTION

As guaranteed by the Sixth Amendment of the United States Constitution, (1) the "right to the effective assistance of counsel at trial is a bedrock principle in our justice system." (2) In order to protect this constitutional right, convicted criminal defendants are able to bring ineffective assistance of trial counsel (IATC) claims; however, they must closely follow procedural rules to obtain access to this form of relief. (3) For example, a prisoner who wants to raise an IATC claim in a federal habeas corpus proceeding based on a state conviction must first exhaust all available state court remedies. (4) This means that the prisoner must have previously raised the claim either on direct appeal or in a state habeas corpus petition. (5) Otherwise, the claim is considered procedurally defaulted and barred from federal habeas review. (6)

In Trevino v. Thaler, the Supreme Court preserved its longstanding rule that states need not provide postconviction counsel to prisoners bringing IATC claims (7) ; however, the Court's decision did ensure that substantial IATC claims--claims that previously had been procedurally barred from federal court as a consequence of errors by state postconviction counsel--would be reviewed on their merits. (8) By doing so, the Court sought to create a special safeguard to ensure that the Sixth Amendment right to counsel--the right that secures all other rights (9)--is meaningfully protected.

The Court based its decision in Trevino on the limitations of Texas procedural law. Although Texas law does not place an outright ban on IATC claims on direct review, the "procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of [IATC] on direct appeal." (10) In order to raise an IATC claim on direct appeal, counsel must file a motion for a new trial. However, in Texas, the trial transcript is not required to be available until after the motion for new trial deadline, (11) and the trial transcript is essential for arguing an ineffective assistance of counsel claim. (12) Therefore, it is highly unlikely that direct appeal counsel will have the requisite information and time to properly contest trial counsel's performance on direct appeal, thereby precluding any chance for relief later.

If the direct appeal is unsuccessful, filing a petition for a writ of habeas corpus in state court is the prisoner's final opportunity for relief in that forum. But if the IATC claim is not raised in the state habeas corpus petition, the claim is procedurally defaulted, and federal courts are barred from reviewing the trial counsel's performance. Consequently, under the old Texas system, if state habeas counsel failed to raise an IATC claim, prisoners could exhaust all of their postconviction remedies without ever being given the opportunity challenge the deficient performance of their trial attorney. In Trevino, the Supreme Court fashioned a remedy to respond to this perceived procedural injustice. This remedy allows prisoners to obtain federal review of the constitutional effectiveness of their trial counsel. In Trevino's case, this decision enabled him to seek review of his death sentence. (13)

This Comment argues that even though Trevino appears to guarantee habeas corpus petitioners the ability to raise IATC claims in federal court, it is unlikely to provide prisoners meaningful opportunities to assert these claims. First, Trevino's broad language allows judges to distinguish a different state's procedural rules from the rules at issue in Trevino, substantially limiting the impact of its holding. Second, the Court showed no inclination to reconsider its prior precedent, holding that there is no constitutional right to effective counsel in collateral proceedings. Without a constitutional right to counsel in habeas corpus proceedings--even if Trevino makes federal habeas review available--indigent prisoners are left to their own devices. Without the help of an attorney, it can be difficult to raise successful IATC claims.

Part I of this Comment briefly discusses the history of federal habeas corpus review for state prisoners and examines Supreme Court precedent prior to Trevino. Part II presents Trevino's facts and procedural posture, and discusses the majority and dissenting opinions. Part III analyzes the lower courts' interpretations of Trevino and also predicts the impact Trevino will have on prisoners' access to federal habeas review. Finally, Part IV proposes that Georgia's minority approach to IATC claims is a superior method for protecting the Sixth Amendment right to effective counsel. In coming to this conclusion, this Comment argues that IATC claims should be raised first on direct appeal, where prisoners retain a constitutionally protected right to effective counsel, as opposed to a collateral proceeding, where there is no such constitutional right to counsel.



      The writ of habeas corpus enables a prisoner to petition for postconviction relief if he has been incarcerated "in violation of the Constitution or laws or treaties of the United States." (15) A habeas claim is "an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody." (16) Successful habeas corpus petitions result in a new trial, a new sentence, or release. (17) These significant remedies demonstrate the integrity of the American justice system, which is reluctant to incarcerate a prisoner whose conviction is at odds with Constitutional and federal law. (18) The Constitution recognizes the importance of personal liberty, and the writ of habeas corpus ensures one's freedom is not taken away without just cause. A justice system without habeas corpus proceedings would be disadvantageous for prisoners because direct appeal would be the only forum for a prisoner to challenge his conviction or sentence. (19) Habeas corpus proceedings provide a means to correct errors in earlier proceedings and ensure prisoners are rightly incarcerated.

      The Supreme Court has recognized "the historic importance of federal habeas corpus proceedings as a method for preventing individuals from being held in custody in violation of federal law." (20) Originally, only federal prisoners were able to obtain federal habeas corpus relief, (21) but habeas relief has also been available to state prisoners for nearly a century. (22) However, a state petitioner must first exhaust all available state court remedies before a federal court will review his habeas petition. (23) Exhaustion requires that a prisoner either raise his claims on direct appeal or in a state habeas corpus petition, as long as it is the forum identified by state law as the proper one for the claim involved. (24)


      The first part of this section provides a brief overview of a defendant's constitutional right to the assistance of effective counsel and when in the judicial process that right ends. The second part of this section discusses two Supreme Court cases that laid the foundation for Trevino.

      1. Gideon and Strickland

        The story begins with Gideon v. Wainwright and the right to counsel in criminal cases. (25) In this landmark decision, the Supreme Court extended the Sixth Amendment right to the assistance of counsel to all criminal defendants, requiring states to provide counsel to any defendant who cannot pay for legal assistance. (26) Soon after, the Supreme Court articulated that a defendant not only has a right to counsel, but also a right to effective counsel. (27) In Strickland v. Washington, the Court established a national standard for reviewing claims of ineffective assistance of counsel. (28) To raise such a claim, Strickland requires a defendant to show both that counsel's performance was deficient and that counsel's errors prejudiced the defense. (29) Strickland sets a high bar for petitioners because there is a strong presumption that counsel performed adequately. (30) Additionally, proving that counsel made an error is not enough. The petitioner must show that, but for the error, the outcome of the proceeding would have been different. (31) As a result of Strickland's rigorous standard, ineffective assistance of counsel claims are difficult to win. (32)

        Although criminal defendants are constitutionally guaranteed effective assistance of counsel, the Supreme Court has consistently interpreted the right to counsel as ending after direct appeal. (33) The rationale for this cutoff is that "[p]ostconviction relief is even further removed from the criminal trial than is discretionary direct review [where the constitution likewise does not guarantee counsel]. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature." (34) As a result, a defendant who wishes to fight his conviction is not guaranteed appointed counsel after direct appeal. However, most...

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