The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right to effective assistance of counsel at both the trial and appellate level. A defendant raising an ineffective assistance claim in a post-conviction proceeding must meet a two-prong requirement spelled out in a 1984 U.S. Supreme Court decision to secure relief:


  1. Counsel’s performance fell below an “objective standard of reasonableness;” and
  2. There must be a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 


The first prong is known as the “deficient” prong, while the second is the “prejudice” prong. In other words, a defendant must show that counsel performance was deficient and that a specific prejudice resulted from that deficiency. That is an exceedingly difficult criterion to meet under the best of circumstances.


Generally, ineffective assistance of counsel claims are presented in “post-conviction” proceedings, such as a writ of habeas corpus. Appellate courts usually defer ruling on ineffectiveness claims on direct appeal because such claims involve facts outside of the trial record and can only be presented and developed in a post-conviction hearing.


State and federal rules require that an attorney timely raise and object to any pretrial and trial errors. These rules also require counsel to present all claims warranting statutory or constitutional review on direct appeal. The failure to do so can result in barring those claims from review during direct appeal and post-conviction processes. It is commonly known in federal habeas corpus proceedings as “procedural default.”


The only way a claimant can bypass a procedural default is to show “cause and prejudice.” This rule dates back to a 1977 Supreme Court decision. The rule is much like the deficiency and prejudice prongs of an ineffective assistance claim; namely, there must be a “cause” for the failure to raise a claim (such as ineffective assistance of counsel) and a specific prejudice flowing from the cause.


In the wake of that 1977 decision, the federal courts left open or generally issued mixed rulings on the issue of whether the Sixth Amendment right to effective counsel attached to counsel’s performance in state post-conviction proceedings.


In 2012, the Supreme Court issued a 7-2 majority landmark decision (one hotly contested by Justices Clarence Thomas and Antonin Scalia) in Martinez v. Ryan, which allowed narrow exceptions to rules governing effectiveness in post-conviction proceedings.


The Court’s exceptions allowed a federal habeas court to hear a claim of ineffective assistance when an attorney’s errors (or an attorney’s absence) caused a procedural default in the initial collateral proceeding.


 “When a State requires a prisoner to raise a claim of ineffective assistance at trial in a collateral proceeding, a prisoner may establish cause for a procedural default of such claim in two circumstances: where the state courts did not appoint counsel in the initial-review collateral proceeding for an ineffective-assistance-at-trial claim; and where appointed counsel in the initial-review collateral proceeding, where that claim should have been raised, was ineffective… To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-at-trial claim is substantial.”


The Martinez decision was limited to certain state jurisdictions, like Arizona and Texas. But, as the ABA reported the following year, the Supreme Court issued an opinion in a Texas case (in a more narrow 5-4 ruling) that seemed to indicate that the Martinez rule would be extended to other jurisdictions.


Justice Thomas has a longstanding judicial history of opposing “rights” for either convicted or incarcerated people. He expressed particular disdain for the Martinez rule. 


The conservative justice got his revenge in an opinion released on May 23, 2022, in which he and his fellow conservative ideologues effectively gutted the Martinez rule and disemboweled many ineffective assistance of counsel claims. This new Thomas announced rule severely limits how ineffective assistance claims can be presented in federal court, including those involving clams of “actual innocence.”


The opinion announced, that since there is no right to effective assistance of counsel in post-conviction proceedings, writs, found in the Constitution, federal courts may excuse procedural default only if a prisoner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law…With respect to cause, “attorney error cannot provide cause to excuse a default” “in proceedings for which the Constitution does not guarantee the assistance of counsel at all.”   


Thomas justified the Court’s horrific decision this way:


“Serial re-litigation of final convictions undermines the finality that is essential to both the retributive and deterrent functions of criminal law.” He added: “Further, broadly available habeas relief encourages prisoners to sandbag state courts by selecting a few promising claims for airing on state post-conviction review while reserving others for habeas review should state proceedings come up short.”


In a blistering dissent, Justice Sonia Sotomayor said the new rule created by Thomas and his conservative colleagues “reduces to rubble many inmates’ Sixth Amendment rights to the effective assistance of counsel,” adding that the new rule “hamstrings the federal courts’ authority to safeguard that right.” Justice Sotomayor then directed this scathing volley at Thomas: “This decision is perverse. It is illogical …” 


Innocent inmates will be executed in Arizona and Texas, and others will spend decades, if not the rest of their lives, in prison because Justice Clarence Thomas crafted a “perverse” legal ruling based on a conservative ideology and not the U.S. Constitution, one that favors finality of proceeding over justice.