Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claims

In one of the last decisions of its October 2016 term, a sharply divided Supreme Court yesterday ruled against a Texas prisoner facing a death sentence, declining to extend its 2012 ruling in Martinez v. Ryan. Instead, for a 5-4 majority, Justice Clarence Thomas concluded in Davila v. Davis that when a state prisoner fails in a state post-conviction proceeding to challenge the effectiveness of his direct-appeal lawyer, he may not raise that claim in a federal habeas petition – even if his failure was caused by ineffective assistance of his post-conviction counsel. Whereas Martinez (and its sequel, Trevino v. Thaler) had held that such “nested” ineffectiveness-of-counsel claims can be pursued in federal habeas petitions, the Supreme Court’s decision in Davila v. Davis limits Martinez and Trevino to circumstances in which the underlying ineffectiveness claim goes to the prisoner’s trial lawyer, not to any deficiencies by the counsel handling his direct appeal. And although the issue in Davila is narrow and technical, the case may come to serve as a broader flashpoint in the ongoing debate over the proper role and scope of collateral post-conviction review.

As the argument preview summarized, Erick Davila was convicted and sentenced to death in 2009 for killing a woman and her five-year-old granddaughter as part of a shooting spree in which he would later claim he was aiming at an individual he (apparently incorrectly) thought to be affiliated with a rival gang. At trial, he presented two defenses: that the witnesses had mistaken him for someone else, and that, even if he was the perpetrator, he lacked the specific intent to kill the victims. With regard to the latter defense, the judge gave the jury an erroneous instruction over the contemporaneous objection of Davila’s counsel. The instruction suggested, contrary to the relevant Texas law, that Davila could be convicted of capital murder even if he only intended to kill the intended target, and no one else. Unfortunately for Davila, neither his appellate lawyer nor his state post-conviction counsel sought to press that issue. And although Davila claimed that his appellate lawyer therefore provided ineffective assistance, the district court held that he had defaulted that claim by failing to raise it in his state collateral post-conviction review proceeding.

In his concise and direct opinion for the majority, Thomas began by reiterating the continuing force of the court’s 1991 ruling in Coleman v. Thompson, which held, among other things, that there is no right to counsel (or, by extension, to the effective assistance of counsel) in state post-conviction proceedings. Martinez and Trevino, Thomas explained, only recognized a “narrow,” “highly circumscribed” “equitable exception” to Coleman’s more general rule, one that should not be expanded “to new categories of procedurally defaulted claims” absent compelling reasons for doing so.

As Thomas explained, “The Court in Martinez made clear that it exercised its equitable discretion in view of the unique importance of protecting a defendant’s trial rights, particularly the right to effective assistance of trial counsel.” In contrast, “Claims of ineffective assistance of appellate counsel … do not pose the same risk that a trial error—of any kind—will escape review altogether, at least in a way that could be remedied by petitioner’s proposed rule.” After all, if, as in Davila, the claim is properly raised at trial, then at least one court (the trial court) will have had the chance to pass upon it. And if the claim is not properly raised at trial, then in most cases, “the prisoner could not make out a substantial claim of ineffective assistance of appellate counsel,” because “[d]eclining to raise a claim on appeal … is not deficient performance unless that claim was plainly stronger than those actually presented to the appellate court.”

Finally, Thomas concluded, expanding Martinez and Trevino to encompass ineffective assistance of appellate counsel “would not only impose significant costs on the federal courts, but would also aggravate the harm to federalism that federal habeas review necessarily causes,” and for benefits that would be “small.” After all, even though “permitting a state prisoner to bring a meritorious constitutional claim that could not otherwise be heard is beneficial to that prisoner,” there likely would not be that many cases in which a prisoner, through ineffective assistance of his appellate counsel, was deprived of the ability to bring a meritorious challenge that had already been considered – and rejected – by the trial court.

Writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Stephen Breyer (who had penned the majority opinion in Trevino) wrote an especially pointed dissent. After describing the“[f]our features of the claim of ineffective assistance of trial counsel [that] led the Martinez Court to its conclusion,” Breyer walked through why he believed each also applied to claims like Davila’s. “Suppose that, during the pendency of the appeal, appellate counsel learns of a Brady violation, juror misconduct, judicial bias, or some similar violation whose basis was not known during the trial,” Breyer posited. “And suppose appellate counsel fails to pursue the claim in the manner prescribed by state law. Without the exception petitioner here seeks, no court will hear either the appellate-ineffective-assistance claim or the underlying Brady, misconduct, or bias claim.”

As for the costs of extending Martinez to ineffective assistance of appellate counsel, Breyer criticized the majority for failing to substantiate its claims. As he noted, “Texas’ estimate of added workload comes down to an increase of ‘dozens’ of cases out of 7,500 cases in total [in the Ninth Circuit, which has applied Martinez since late 2013]. That figure represents an increase, but not an increase significant enough to warrant depriving a prisoner of any forum to adjudicate a substantial claim that he was deprived of his constitutional right to effective assistance of appellate counsel.”

Finally, Breyer pointed to Justice Antonin Scalia’s dissent in Martinez, which had observed that there “is not a dime’s worth of difference in principle between [ineffective-assistance-of-trial-counsel] cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised,” including “claims asserting ineffective assistance of appellate counsel.” “I agree,” Breyer concluded.

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Compared to some of the major habeas decisions from October Term 2015, it’s hard to see Davila as anything other than an important, but narrow, clarification of the scope of Martinez and Trevino. At the same time, with the focus of courts and commentators increasingly shifting to the nature and scope of state post-conviction proceedings, how one views the relationship between Coleman and Martinez has consequences far beyond the specific question presented – and decided – in Davila. And with Justice Anthony Kennedy (and Justice Neil Gorsuch) joining the remaining Trevino dissenters to cabin the scope of Martinez and Trevino, the scale appears to have tipped, at least for the moment, back in Coleman’s direction.

Posted in: Analysis, Featured, Merits Cases

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