Opinion analysis: A new remedy, but no right

Judge Henry Friendly once suggested that dissenting opinions are not always a reliable guide to the meaning of the majority; often their predictions partake of Cassandras gloom more than of her accuracy. At first blush, its hard to tell which is the more accurate view of Justice Scalias sharply worded and sarcastic dissent from the Supreme Courts decision Tuesday in Martinez v. Ryan, which recognized a new remedy for state criminal defendants who claim that counsel in their collateral state post-conviction proceeding failed adequately to challenge the effectiveness of trial counsel. But on closer inspection, although the dissent portrayed the majoritys reasoning as opening the floodgates to a bevy of new constitutional claims in collateral state post-conviction review proceedings, it seems that Justice Kennedy may well have found the limiting principle for which the Court spent most of the oral argument searching, albeit in a strange and unanticipated place.

The question presented in Martinez was whether criminal defendants ever have a right to the effective assistance of counsel in collateral state post-conviction proceedings. Although the Justices have repeatedly drawn a bright line for these purposes between direct appeals (in which the right to counsel and to the effective assistance thereof is well-established) and collateral challenges (in which no right to counsel has been recognized), they have reserved whether this distinction would hold when state collateral review is the first place a prisoner can present a challenge to his conviction. Answering this question poses a choice between two equally unappealing alternatives. On one hand, in states (like Arizona) that require criminal defendants to challenge the effectiveness of trial counsel in state post-conviction proceedings, such collateral review is the first chance to raise a constitutional objectionand may thus constitute the first tier of post-conviction review, i.e. that for which counsel has typically been required. On the other hand, recognizing a general right to counsel in collateral state post-conviction proceedings whenever a claim could not have been raised on direct appeal would have dramatic consequences both with respect to the timing and cost of collateral state post-conviction review (not to mention that it would arguably be inconsistent with the Courts 1991 decision in Coleman v. Thompson). As Justice Alito suggested at oral argument, such a right, if it existed, would presumably require not just one, but repeated (and iterative) avenues for collateral state post-conviction review, with each new proceeding allowing the defendant to challenge the effectiveness of his counsel in the previous proceeding.

Writing for the majority in Martinez, Justice Kennedy chose a third option: none of the above. Although Kennedy noted that the Court had left open in Coleman whether there might be an exception to the constitutional rule that there is no right to counsel in collateral proceedings, he concluded that [t]his is not the case…to resolve whether that exception exists as a constitutional matter. Instead, the majority opinion (joined without comment by Chief Justice Roberts and Justice Alito, along with Justices Ginsburg, Breyer, Sotomayor, and Kagan) concluded that [i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoners procedural default of a claim of ineffective assistance at trial. In other words, without specifically holding that defendants in Martinezs position have a freestanding constitutional right to the effective assistance of counsel in collateral post-conviction proceedings, the Court held that the ineffectiveness of a defendants state post–conviction counsel may provide cause in a federal habeas proceeding to excuse the defendants failure to challenge the ineffectiveness of his trial counsel.

As a result, the defendant will not have a new right to counsel (or the effective assistance thereof) in state post-conviction proceedings, but he also will not necessarily be barred from raising for the first time in his federal post-conviction proceeding the argument that his trial counsel was ineffective. Instead, the majority split the difference. As Justice Kennedy explained,

when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington.

The ineffectiveness-of-trial-counsel claim must be substantial, but so long as it is, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Otherwise, though, Justice Kennedy emphasized that Colemans holdingthat an attorneys negligence in a postconviction proceeding does not establish cause to excuse a defendants failure to raise a particular claim therein remains true except as to initial-review collateral proceedings for claims of ineffective assistance of counsel at trial. Put succinctly, [t]he rule of Coleman governs in all but the limited circumstances recognized here.

In dissent, Justice Scalia, joined by Justice Thomas, suggested that the purportedly narrow rule the majority articulated would in fact eviscerate Coleman and thereby create[] a monstrosity by requiring states to do in practice exactly what the Court refused to hold the Constitution requires. In his words, the majority opinion as a practical matter requires States to appoint counsel in initial-review collateral proceedingsand, to boot, eliminates the pre-existing assurance of escaping federal-habeas review for claims that appointed counsel fails to present. In short, the dissents argument is that even if defendants lack a right to counsel (and the effective assistance thereof) in collateral post-conviction proceedings, the majoritys rationale will still dramatically expand the scope of federal post-conviction review because it will remain to be determined in federal habeas review whether the state-appointed [post-conviction] counsel was effective.

Although there is some logic to Justice Scalias objections, they rely on two assumptions, neither of which is self-evident. First, the dissent assumes that it will be difficult and labor-intensive for federal district courts to separate cases in which state post-conviction counsel failed to raise substantial arguments concerning the ineffectiveness of trial counsel from those in which such arguments would clearly have been meritless. Given that the far more likely outcome of todays opinion is that states (and their appointed post-conviction counsel) will be that much more sensitive to ineffectiveness-of-trial-counsel claims in collateral state post-conviction proceedings, the majority opinion may in fact have the salutary effect of putting a greater onus on state courts seriously to consider ineffective assistance claims in state post-conviction proceedings. The result might in fact be to reduce the burden on federal courts since more meritorious ineffectiveness-of-trial-counsel claims will be identified before the case reaches federal court.

Second, and in any event, Justice Scalias dissent proceeds on the assumption that this new exception to the judge-made jurisprudence of procedural default will necessarily compel all states to appoint post-conviction counsel in all first-tier collateral state post-conviction proceedings. But as Justice Kennedy observed for the majority, by not constitutionalizing such a rule, the Court permits a State to elect between appointing counsel in initial-review collateral proceedings or not asserting a procedural default and raising a defense on the merits in federal habeas proceedings. Although that may be a Hobsons choice from Justice Scalias perspective, it is a choice all the same, and one that highlights the narrowness of the majoritys equitable, rather than constitutional rule.