Ineffective-Assistance-Of-Trial-Counsel Claims Not Barred From Federal Habeas if Ineffective Counsel at Initial State Habeas Proceeding


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The U.S. Supreme Court handed down its third major decision this term dealing with ineffective assistance of counsel, Martinez v. Ryan. (The other two decisions can be found here and here.) Martinez deals with counsel who failed to take specific steps to protect a state prisoner’s right to present an ineffective assistance counsel claim in state post-conviction proceedings—a professional dereliction that procedurally barred the state prisoner from having the claim heard in federal court.


And what exactly is a “procedural bar,” more commonly referred to as a “procedural default? A federal court will almost always refuse to hear a state prisoner’s claimed constitutional violation presented in a federal habeas proceeding if the prisoner failed to present the claim in state court in the precise manner mandated by state procedural rules governing collateral attacks. A state prisoner can only get around a procedural bar by demonstrating either 1) cause to excuse the default and actual prejudice suffered by because of an alleged violation of federal law or 2) the failure to review the alleged violation would “result in a marriage of justice.”


Luis Mariano Martinez was convicted in the State of Arizona for a sexual offense involving a minor. Under Arizona law, as in Texas and most other states, Martinez was constitutionally and statutorily entitled to a “direct appeal” to a state court of appeals and to the Arizona Supreme Court. In Arizona, and in Texas, an ineffective assistance of counsel claim is not favored on direct appeal. Because such claims generally require a factual development, state courts generally require that these claims be raised in a post-conviction application—in Arizona, the collateral proceeding is known as “post-conviction relief” while in Texas it is habeas corpus relief. The Supreme Court in Martinez elected to call these post-conviction remedies “initial-review collateral proceedings.”


Martinez’s ineffective assistance claim against his trial counsel centered around two primary issues:


  1. Defense counsel did not object to testimony by a state expert witness that recanted testimony in child sexual abuse cases is not uncommon. The State introduced a forensic interview with the child detailing the abuse; however, at trial the victim said no abuse occurred.
  2. Defense counsel did not pursue an exculpatory explanation for Martinez’s DNA being found on the victim’s nightgown. The State offered the DNA as evidence indicating sexual abuse.


As happens in most cases following conviction, especially in cases involving appointed counsel, trial counsel is replaced by post-conviction counsel.


Martinez was appointed a post-conviction attorney who filed his direct appeal raising a number of issues, including insufficient evidence to convict and newly discovered evidence. While Martinez’s direct appeal was pending, the attorney initiated post-conviction proceedings by filing a “Notice of Post-Conviction Relief.”  However, the attorney did not raise an ineffectiveness claim regarding trial counsel’s performance and, in fact, later filed a statement with the trial court that she could not find any “colorable claims” in the case. As required by Arizona post-conviction procedures, the court hearing the post-conviction application informed Martinez through counsel that he had 45 days to file a pro se petition raising any claim he wanted to protect. The attorney did not inform Martinez of this requirement, thus he did not file a pro se petition. The trial court denied post-conviction relief—a decision upheld by the Arizona appellate courts.


Eighteen months later, represented by a new attorney, Martinez filed a second notice for post-conviction relief. The new attorney raised the ineffectiveness claim that trial counsel had not challenged the State’s evidence as outlined above. The trial court dismissed the application and particularly rejected the ineffectiveness claim because it had not been presented in the first post-conviction proceeding as required by Arizona’s post-conviction procedures. The Arizona appellate courts agreed.


With all state remedies completely exhausted, Martinez’s attorney sought federal habeas corpus relief under 28 U.S.C. § 2254. At the outset the attorney called the U.S. District Court’s attention to the fact that the ineffectiveness claim had been defaulted because it had not been presented in the first post-conviction application. The attorney, however, argued he could surmount this federal procedural bar by showing Martinez had cause for the default. The cause was the dereliction of the first post-conviction attorney to raise trial counsel’s ineffectiveness in that initial proceeding.


This is where the procedural waters got murky. More than two decades ago the U.S. Supreme Court in Coleman v. Thompson held that mistakes by a post-conviction attorney do not qualify “as cause for default.” Coleman was a horrific decision which often placed convicted state prisoners at the whim and incompetence of attorneys handling their post-conviction appeals. In the Coleman case, for example, the attorney failed to timely file a notice of appeal which defaulted the state prisoner’s appeal and thereafter barred federal review of any claims associated with that appeal.


Bound by the Coleman precedent, the federal district court and the Ninth Circuit Court of Appeals concurred that Martinez was procedurally barred from presenting the ineffectiveness of trial counsel claim in federal habeas because of the mistake made by the first post-conviction attorney in not raising the issue in that initial post-conviction, effectively defaulting the issue.


Coleman, however, did leave open certain unresolved issues; namely, whether a state prisoner has a right to appointed counsel in post-conviction proceedings because this is his first opportunity to raise an ineffective assistance of counsel claim. As the Coleman court noted, it is the state prisoner’s “one and only appeal” on the issue of ineffectiveness by either trial or direct appeal counsel. The Martinez Court declined the opportunity to address this constitutional issue, but did focus on the sole issue of whether an attorney’s failure in the initial post-conviction proceeding to raise an ineffectiveness claim about trial counsel provided sufficient “cause” to preclude a federal procedural default. The Martinez Court agreed that it did, modifying the Coleman rule slightly. The Martinez Court specifically held: “Inadequate assistance of counsel at initial-review collateral proceedings may establish cause to excuse a prisoner’s procedural default of a claim of ineffective assistance at trial.”  So, an otherwise procedurally barred claim for ineffective assistance of trial counsel can now be brought IF the prisoner’s initial post-conviction writ attorney was also ineffective and failed to raise the issue.


We welcome the Martinez rule, just as welcome the other two cases this term by the Supreme Court holding bad attorneys’ feet to the fire of accountability.


Obviously we would have preferred a bright line ruling holding that prisoners have a Constitutional right to effective assistance of counsel at their “initial post-conviction proceeding,” especially given that the Court has consistently held that this is a prisoner’s last real chance for Constitutional relief.


What we continue to find disturbing, and quite hypocritical, is the Supreme Court’s continuous sanctioning and immunizing prosecutorial misconduct that sends innocent people to prison and death row. (Here, here, and here). While there is no excuse for mistakes by defense attorneys that cost a defendant a fair trial or result in a lost appeal or defaults a post-conviction review, there is certainly no excuse for the Supreme Court giving rogue prosecutors a license to lie, cheat, and frame defendants, especially innocent ones and particularly those who are railroaded to death row.


For example, the American Bar Association in a recent Louisiana case, in which prosecutors engaged in serious misconduct, encouraged the Supreme Court, in an amicus curiae brief, to use the case to recognize that a prosecutor’s pre-trial ethical obligation under Rule 3.8(d) of the Model Rules of Professional Conduct to disclose favorable evidence, regardless of materiality, is broader than that required under the post-conviction Brady analysis. The ABA stated:


“The case involves numerous serious allegations of non-disclosure that, post-trial, a court must evaluate under this Court’s Brady jurisprudence. However, a prosecutor’s pre-trial ethical disclosure obligations, as governed by the attorney disciplinary rules of the state or jurisdiction in which the prosecutor practices, are separate from and broader than the constitutional standards. Specifically, the ABA Model Rule 3.8(d) [Model Rules of Professional Conduct] mandates disclosure of exculpatory and mitigating evidence without regard to materiality. This Rule’s widespread acceptance is reflected in the fact that 49 states, including Louisiana, as well as the District of Columbia, United States Virgin Islands, and Guam have adopted ethics rules that include a provision identical or substantially similar to it. Similarly, various provisions of the ABA Criminal Justice Standards promote broad disclosure of all exculpatory evidence, without regard to the materiality standard that is required for post-trial analysis under Brady. Accordingly, this Court should again recognize that a prosecutor’s pre-trial ethical disclosure obligations are distinct from the constitutional standards that control a court’s post-trial determination.”


While the Court reversed the conviction in that Louisiana case, the Justices did not even mention a prosecutor’s pre-trial ethical obligations to disclose Brady material. It was an affront to the ABA. But we suspect, as we long have, that the Supreme Court remains determined to provide as much constitutional cover for “rogue prosecutors” as possible. Put simply, the Court wants the status quo to remain in place; namely, that the worst consequence a prosecutor can expect for committing a Brady violation is a slap-on-the-wrist by reversal of the conviction.


The reality is that our justice system works only when its three primary components—prosecutors, defense attorneys, and the courts—function with the overriding goal of seeking the truth and finding a just conclusion in all criminal cases. This goal will never be realized so long as the Supreme Court sanctions prosecutorial misconduct with absolute immunity (and the trial courts that too often permit such misconduct). It undermines the integrity of the truth-seeking process. We deplore it, and will continue to speak out against it.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization