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Martinez v. Ryan argument preview: Direct vs. collateral review and the theory behind the right to counsel

The following Argument Preview is written by Stephen I. Vladeck, Professor of Law at American University Washington College of Law. His teaching and research focus on federal jurisdiction, constitutional law (especially the separation of powers), national security law, and international criminal law.

I. Introduction

When the Supreme Court hears argument in Martinez v. Ryan on Tuesday, October 4, the Justices will confront a head-on conflict between two settled principles concerning criminal defendants’ right to counsel: the constitutional right of all criminal defendants to counsel (and to the effective assistance thereof) both at trial and on direct appeal; and the Court’s consistent and categorical refusal in subsequent decisions to confer similar protection upon criminal defendants in discretionary or collateral post-conviction proceedings. The conflict between these two bodies of case law arises here because a number of jurisdictions (such as Arizona) bar defendants from raising certain claims – such as ineffective assistance of counsel – on direct appeal. Instead, the defendants may only advance such arguments for the first time in collateral state post-conviction proceedings. In Martinez, the Ninth Circuit held that the Supreme Court’s decisions in two cases – Ross v. Moffitt, in which the Court held that the right to counsel does not extend to requests for discretionary review before either a state court of last resort or the U.S. Supreme Court, and Coleman v. Thompson, holding that the right to counsel does not extend to collateral post-conviction review – nevertheless preclude a right to counsel in such proceedings. But if Douglas v. California, (recognizing a defendant’s constitutional right to counsel for a direct appeal as of right) and its successors stand for the proposition that defendants have a right to counsel on direct appeal because it is their first opportunity to object to errors at trial, then the same argument would also seem to support a right to counsel in such collateral post-conviction proceedings, as well. Thus, as was the case six years ago in Halbert v. Michigan, in which the Court recognized a right to counsel for a discretionary appeal from a plea bargain when the appeal was the “first tier” of review, the Court in Martinez will have to determine with which set of decisions the case should be aligned.  More fundamentally, though, and to a far greater degree than was true in Halbert, Martinez presents a doctrinal conundrum, the resolution of which will likely turn on the Justices’ view of the underlying purpose of the constitutional right to counsel.

II. Background

Although the issue in Martinez is easy enough to describe, the posture in which it arose is rather complicated: Luis Mariano Martinez was convicted in Arizona state court of sexual conduct with an underage minor—his eleven-year-old step-daughter. Martinez subsequently sought to raise an ineffective assistance claim in a collateral state post-conviction proceeding. Unbeknownst to him, however, his state-assigned appellate counsel had already initiated such a proceeding, and had failed to raise any ineffective assistance claim (or any claim, for that matter) before the proceeding was dismissed. Thus, the Arizona state courts concluded that Martinez had procedurally defaulted – that he was precluded from raising his ineffective assistance claim in his “second” collateral post-conviction proceeding because he had failed to raise it in his “first” collateral post-conviction proceeding. Martinez then brought a federal habeas petition, arguing that he did not default, but that in any event he had cause to excuse the default because of the ineffective assistance of his appellate counsel, who filed the first collateral post-conviction proceeding without Martinez’s knowledge or consent. The district court disagreed, holding that Martinez had no right to counsel (and therefore no right to the effective assistance thereof) in his collateral state post-conviction proceedings. Because Martinez could not claim that the counsel who filed his first collateral post-conviction proceeding had been ineffective, he therefore could not show cause to excuse his failure to raise ineffective assistance in that proceeding. As a result, Arizona’s procedural bar operated as an independent and adequate ground to preclude federal consideration of Martinez’s underlying federal constitutional ineffective-assistance claim.

On appeal, the Ninth Circuit affirmed. Writing for a unanimous panel, Judge Wallace reasoned that “[c]ollateral review and direct review are not on equal footing where, as here, a defendant has already benefitted from the assistance of counsel in a direct appeal. . . . Even though collateral proceedings might provide the first tier of review for a particular claim, Martinez has already benefitted from the assistance of counsel in his first appeal.” Thus, the court of appeals concluded that Martinez’s claim was governed by Ross, rather than by Douglas or more recent decisions such as Halbert.  The Supreme Court granted Martinez’s petition for certiorari on June 6.

III. Arguments

As one might expect from a case that presents the intersection of two competing strands of doctrine, the bulk of the briefing in support of Martinez attempts to explain why his claim fits more comfortably within the Douglas line of cases than the Ross line. To that end, Martinez’s brief argues that “Douglas controls this case because in Arizona a first post-conviction relief proceeding effectively serves as the first appeal for any ineffective-assistance-of-trial-counsel claim.” And unlike in Ross, the defendant at that point “will have received no prior assistance of counsel with regard to any ineffective-assistance-of-trial-counsel claim; and he will be at least as ill equipped as the defendants in Douglas and Halbert to represent himself in investigating and presenting such a claim.”

In contrast, Arizona’s argument centers on the categorical nature of language in prior Supreme Court opinions concerning the right to counsel (more precisely, the lack thereof) in collateral post-conviction proceedings, especially Ross, Pennsylvania v. Finley, and Murray v. Giarratano. In addition, Arizona argues, recognition of a right to counsel in such proceedings – and to the effective assistance thereof – would impose substantial costs on the states, which would require both the provision of counsel and the possibility of another round of state post-conviction proceedings to ensure that the defendant received effective assistance in the first round. Finally, as a fallback, Arizona argues that even if the Court were to recognize such a right, it would be inconsistent with congressional intent to allow such a right to provide the basis for habeas relief:  28 U.S.C. § 2254(i) provides that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” To be sure, Martinez is not invoking the ineffectiveness of his post-conviction counsel as the ground for relief in his habeas petition, but only as the basis for excusing his default of his trial-counsel ineffectiveness claim. Nevertheless, Arizona argues, allowing Martinez to bring such a claim would create an end run around Section 2254(i).

Appearing as an amicus in support of Arizona, the United States offered a similar set of arguments.  It extols the virtues of the “categorical approach” that the Supreme Court has previously taken to the right to counsel, which appears to draw a bright line between direct appeals and discretionary or collateral proceedings. Echoing Arizona’s concerns (and those of twenty-four additional states that also filed an amicus brief in support of Arizona), the Solicitor General emphasized that Martinez’s “proposed exception also would create significant practical difficulties for States and the federal government,” including the burden that both required counsel and additional rounds of proceedings would impose on both the state and federal governments.

IV. Analysis

The Supreme Court last confronted a similar issue in Halbert v. Michigan in 2005. There, Justice Ginsburg, writing for a six-to-three majority, held that defendants were entitled to counsel for a discretionary post-conviction appeal from a plea bargain for two independent reasons: “First, in determining how to dispose of an application for leave to appeal, Michigan’s intermediate appellate court looks to the merits of the claims made in the application. Second, indigent defendants pursuing first-tier review in the Court of Appeals are generally ill equipped to represent themselves.” If the Court applies a similar methodology in Martinez, then the same result would seem to follow: Under Arizona law, the trial court entertaining the defendant’s petition for collateral post-conviction review “looks to the merits of the claims made in the application” – i.e., whether the defendant received ineffective assistance from his trial counsel. To similar effect, defendants pursuing ineffective assistance claims are also “ill equipped to represent themselves,” because, as Martinez explained in his merits brief, “a ‘transcript or other record of trial proceedings’ would be inadequate to evaluate the effectiveness of trial counsel, which often depends on what trial counsel did (or did not do) outside the record. And with respect to such extra-record factors, a convicted (and imprisoned) defendant obviously is especially ill equipped to represent himself.”

At the same time, unlike in Halbert, in which the Court considered a unique direct appellate process created by Michigan, recognizing even a limited right to counsel in collateral proceedings could have dramatic repercussions, because it would be incredibly difficult to differentiate between collateral state post-conviction proceedings in which a defendant is raising a claim for the first time and those in which he is seeking to relitigate an issue that was previously adjudicated at trial and/or on direct appeal. If a defendant has a right to counsel for the novel claim, his counsel would presumably also have to provide constitutionally sufficient performance with regard to the relitigated claims, to say nothing of a defendant’s right to a second round of collateral state post-conviction proceedings to litigate the effectiveness of counsel during the first round. Thus, even though the logic of Halbert would seem to support Martinez’s claim here, the implications of such an extension might provide the Justices with more than sufficient reason to balk at deploying similar reasoning in this case.

But Halbert may prove significant in another respect—not for the doctrinal methodology it proposes, but for the theory it embraces: that the purpose of the right to counsel is to allow defendants fully to litigate the merits of viable claims at least once, particularly when a pro se defendant would be ill-equipped to do so on his own. On that view, the distinction between collateral and direct review matters less than the distinction between whether the defendant did or did not previously have a meaningful opportunity to litigate a particular claim on the merits. And if the Halbert majority – which included Justice Kennedy – adheres to that view, it may well regard the extension of the right to counsel that Martinez seeks as worth its potentially considerable cost.  By contrast, the Halbert majority may view the alternative result as having perverse consequences, because it could provide states with an incentive to shift a greater class of claims into collateral, rather than direct, post-conviction review.

V. Conclusion

After reiterating in Coleman v. Thompson that its decisions in Finley and Giarratano establish that criminal defendants have no general right to counsel in collateral attacks on their convictions, the Court suggested that there might be an exception to that rule when “state collateral review is the first place a prisoner can present a challenge to his conviction.” Twenty years later, Martinez gives the Court a chance to decide that question once and for all.

Recommended Citation: Steve Vladeck, Martinez v. Ryan argument preview: Direct vs. collateral review and the theory behind the right to counsel, SCOTUSblog (Sep. 29, 2011, 12:16 PM),