A TALE OF THREE PREJUDICES: RESTRUCTURING THE " MARTINEZ GATEWAY "
Michael Ellis(fn*)
Abstract : Martinez v. Ryan opened a door previously closed to federal habeas petitioners. In the past, where attorney negligence or a pro se defendant's lack of legal knowledge caused ineffective-assistance-of-trial-counsel claims to be procedurally defaulted, those claims were likely lost forever. Now, following Martinez, petitioners get a second chance should they satisfy the Supreme Court's four-pronged test. The Martinez test, however, is not a simple one. This Comment addresses some problems concerning the four-pronged test, including multiple and conflicting standards for the same element, tensions between Martinez and the underlying Strickland v. Washington ineffective-assistance-of-counsel standard, and confusion where the same term of art is used in different contexts. The proposed modifications would simplify Martinez for petitioners-ideally resulting in more evidentiary hearings exploring underlying ineffective-assistance-of-trial-counsel claims in federal district court.
INTRODUCTION
In the vast majority of cases, litigants in the United States get a single bite of the apple. The issue, case, or appeal may be waived, barred by the passage of time, or simply lost on the merits. The litigant is then precluded from raising the issue or claim in a subsequent proceeding. The same principle generally applies to habeas corpus-if a petitioner fails to raise a claim at the appropriate moment or before the correct court, that ground for relief could very well be forfeited forever. When a state court dismisses or rejects a habeas petitioner's alleged grounds for relief on a procedural basis (for example, the failure to comply with a statute of limitations), federal courts will deem such claims "procedurally defaulted."(fn1) Out of deference to the state court's prior determination, federal habeas courts generally will not adjudicate such defaulted claims.(fn2) While there are a variety of mechanisms by which a habeas petitioner may resurrect barred claims, each carries a high burden of proof.(fn3) The most common method of breathing life into a procedurally defaulted claim requires the habeas petitioner to demonstrate both "cause" for not raising the claim below and "prejudice" from not being allowed another shot at the merits in a federal proceeding.(fn4)
Petitioners seeking to resurrect ineffective-assistance-of-counsel claims once faced the same gauntlet as all other procedurally defaulted habeas grounds for relief.(fn5) If a petitioner fails to raise an ineffective-assistance-of-counsel claim in an earlier state court proceeding, it becomes exceedingly difficult to reach the merits of that ground for relief during any subsequent federal review.(fn6) This situation was exacerbated by the United States Supreme Court's 1991 decision in Coleman v. Thompson ,(fn7) which held that an attorney's ineffective assistance could not constitute the "cause" required for a petitioner to resurrect a procedurally defaulted claim.(fn8)
In 2012, the Supreme Court narrowly opened the door previously sealed by Coleman . Under Martinez v. Ryan ,(fn9) petitioners can now use either their state post-conviction review (PCR) counsel's ineffectiveness or their own status as a pro se litigant as the "cause" necessary to excuse a procedural default.(fn10) Part of the Court's reasoning was that effective assistance of counsel is a "bedrock principle in our justice system."(fn11) Due to a variety of factors-including the need for both an expanded record and new counsel-direct review is often not the most appropriate procedural phase for adjudicating ineffective-assistance-of-trial-counsel (IATC) claims.(fn12) One of the Court's primary concerns was that, where a state required an IATC claim to be initially raised on collateral review, an incompetent counsel or the petitioner's own unfamiliarity with the legal system could result in a procedural default.(fn13)
However, the Martinez test is not a simple one.(fn14) It requires a petitioner to establish four elements concerning his or her defaulted claim: (1) the claim is "substantial"; (2) the state PCR counsel was ineffective or there was no PCR counsel; (3) the claim was initially heard in state PCR proceedings; and (4) the claim was required, under state procedural law, to be raised in the state PCR proceeding.(fn15) While the Supreme Court subsequently altered the fourth prong,(fn16) Martinez still controls the first three. Although courts refer to the Martinez test in different ways,(fn17) this Comment will style it as the "Martinez gateway,"(fn18) due largely to its procedural similarities with the "actual innocence gateway."(fn19)
The Martinez test is not without its problems. The exact language of the opinion is open to interpretation, as the Court included conflicting definitions for the same element.(fn20) There are also inherent tensions between Martinez and the incorporated Strickland v. Washington (fn21) ineffective-assistance-of-counsel standard.(fn22) Further, the Court did not go far enough to ensure that the high burden placed on petitioners by Strickland does not swallow the equitable exception designed in Martinez .
This Comment analyzes, and offers suggestions for improving, two facets of Martinez that prove troublesome for lower courts and are overly burdensome on federal habeas petitioners. Part I briefly outlines federal habeas law including the "cause and prejudice" equitable exception. Part II examines Strickland v. Washington and the ineffective-assistance-of-counsel standard. Part III analyzes both Coleman v. Thompson and Martinez v. Ryan, the two central cases in this Comment. Part IV examines the Martinez "substantiality" prong. It argues that federal district courts should impose a lower burden for "substantial" IATC claims and conduct a greater number of evidentiary hearings on the underlying grounds for relief. Part V argues that, as all three potential prejudice determinations scattered throughout Martinez /Coleman look to the same underlying issue-trial counsel's alleged ineffectiveness-all such analyses should be adjudicated under the same, lower standard of "substantiality," as opposed to a full Strickland showing of "actual prejudice." Federal district courts should utilize these suggestions to allow more habeas petitioners through the "Martinez gateway." This would result in more potentially meritorious IATC claims being adjudicated on the record-an outcome that could grant justice to some who did not get a fair shake at the trial level.
I. HABEAS CORPUS IN THE UNITED STATES
In order to understand Martinez 's place in the federal habeas system, it is necessary to examine habeas corpus both generally and in the context of procedural default. This Part begins with a big-picture overview of federal habeas law. Next, it discusses the doctrine of procedural default as well as the various equitable exceptions that can potentially resurrect a forfeited claim, in particular "cause and prejudice."
A. A (Very) Brief History of Habeas
The doctrine of habeas corpus is built around the simple tenet that "no man would be imprisoned contrary to the law of the land."(fn23) This principle was given constitutional significance in the Suspension Clause.(fn24) The Framers were able to take advantage of centuries of legal development through English constitutional history.(fn25) This shared cultural experience, along with the Framers' own tribulations during the Revolutionary Era,(fn26) motivated them to permanently enshrine habeas rights in the fledgling Constitution.(fn27)
Habeas corpus has played a prominent role in American jurisprudence dating back to the nation's founding.(fn28) Chief Justice John Marshall described it as a "great constitutional privilege."(fn29) Other documents from the founding generation share this viewpoint.(fn30) As the Supreme Court has explained, "[a]lthough in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty."(fn31) The core of common law habeas has been that no civilized society can permit its government to deprive citizens of liberty without accountability.(fn32) The use and adjudication of the writ has long been viewed as an "incident of federal judicial power."(fn33)
A habeas claim is in essence an allegation that the government is holding the petitioner in custody in violation of law.(fn34) The writ functions as a remedy for those whose continued restraint is deemed unlawful.(fn35) Should a reviewing court determine that the restraint is illegal, "the individual is entitled to his immediate release."(fn36) Habeas relief can take a variety of forms, including new trials or sentencing proceedings.(fn37)
As an essential mechanism in the system of government established by the Framers, habeas law has developed over the centuries into its own brand of unique and often perplexing litigation. Even with extensive congressional interference,(fn38) the Court has long noted that justice is at the core of the Great Writ.(fn39) The fact that Congress, despite being granted wide-ranging powers in the Constitution, can suspend the writ only in very limited circumstances demonstrates that the writ is a "vital instrument for the protection of individual liberty."(fn40)
As all fifty states have their own distinct...
