Given the implications of the rule for which the petitioner in Martinez v. Ryan was arguing i.e., that the right to counsel, and to the effective assistance thereof, should extend to all collateral post-conviction proceedings in which a defendant has the first opportunity to raise a substantive challenge to his conviction — it is hardly surprising that the bulk of Tuesday’s oral argument centered on the Justices’ search for a limiting principle. The more intriguing question is whether, with Justice Breyer’s help, they might have found one.

Arguing for petitioner Luis Mariano Martinez, Arizona State law professor Robert D. Bartels did his best to ameliorate the concerns raised in the briefs of Arizona and its amici about the substantial costs that collateral post-conviction counsel would entail, suggesting at various points that the rule for which he was advocating would apply only to the first round of collateral post-conviction review. The problem, as Chief Justice Roberts quickly pointed out, is that such a rule would necessitate a second round of collateral post-conviction proceedings in state court, if for no other reason than to ensure the effectiveness of the now-mandated counsel in the first collateral proceeding. Picking up on this theme, Justices Breyer and Alito pushed Bartels to explain whether he thought a right to collateral post-conviction counsel could potentially require multiple rounds of collateral post-conviction proceedings, with each round recursively challenging the effectiveness of counsel during the prior round. Bartels stressed in reply that a line must be drawn somewhere, although such a rejoinder appeared to surprise Justice Breyer, all the more so since it undermines Martinez’s argument that the right to counsel must allow for one meaningful “first tier” of post-conviction review. After all, if counsel in the first collateral post-conviction proceeding is also ineffective, the defendant presumably still would not have had that opportunity.

Arguing for respondent Charles L. Ryan, Kent Cattani — the chief counsel of the Criminal Appeals/Capital Litigation Section of the Arizona Attorney General’s Office — was also on the defensive, with Justices Breyer and Kagan seizing on the fact that Arizona is one of eighteen states requiring the appointment of counsel in the first round of collateral post-conviction proceedings.  If Arizona already appoints counsel, the Justices asked, why shouldn’t it follow that the post-conviction counsel must provide constitutionally effective assistance? Cattani’s reply echoed the Justices’ questioning of Bartels:  because such a right would necessarily require a second round of collateral post-conviction proceedings in cases in which the defendant claimed that the first post-conviction counsel was ineffective. Nevertheless, the suggestion that the rule might be different in those states that mandate the appointment of counsel in the first collateral post-conviction proceedings surfaced repeatedly during the remainder of the argument. In addition, as Justice Sotomayor pointed out, Arizona – unlike at least some other states – requires ineffective assistance claims to be brought in collateral post-conviction proceedings, and so the vindication of the right to counsel for “first-tier” review that the Court recognized in Douglas v. California might require counsel in those proceedings as well. Taking these two strands together, one might see in this questioning the conceptual origins of a narrow doctrinal rule that would only apply to the handful of states that both mandate the appointment of counsel in the first collateral post-conviction proceeding and require ineffective assistance claims to be raised therein. At the very least, Cattani did not do himself any favors when he suggested that there might not be a right to effective assistance even on direct appeal when issues are sent back to the trial court for supplemental proceedings, an argument that Justice Kennedy twice referred to as “very strange.”

Perhaps seeing in the Justices’ colloquy with Cattani the seeds of a negative result, Assistant to the Solicitor General Jeffrey Wall, arguing for the United States as amicus curiae in support of the state, stressed that such a jurisdiction-specific rule would not be particularly narrow, because forty-seven states and the federal government provide for counsel in the first collateral post-conviction proceeding either as of right or in the discretion of the trial court and public defender. And although Wall did not make this argument, it might also follow that a constitutional rule that conditions effective assistance in the collateral post-conviction proceeding on whether appointment of counsel is mandated by state law may have the perverse effect of prompting the eighteen states that do require the appointment of collateral post-conviction counsel, including Arizona, to revisit that choice if the consequence of such beneficence is the potential for additional rounds of collateral post-conviction proceedings — and the costs associated therewith.

At bottom, there seemed to be virtually no support among the Justices for any general rule supporting the right of defendants to counsel in collateral post-conviction proceedings for all claims that they were unable to raise at trial. Whether there might be five votes for a narrower rule requiring effective assistance of post-conviction counsel because of the fortuities of Arizona state law — which mandates both the appointment of collateral post-conviction counsel and the funneling of ineffective assistance of trial counsel claims into those collateral proceedings — remains to be seen.

Posted in Martinez v. Ryan, Featured, Merits Cases

Recommended Citation: Steve Vladeck, Argument recap: An Arizona-specific right to collateral post-conviction counsel?, SCOTUSblog (Oct. 5, 2011, 2:13 PM),