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Opinion analysis: A Texas- (and capital-)specific result to usher in a new wave of case law?

As we noted in our argument preview, the Supreme Court held last Term in Martinez v. Ryan that, where a state requires a criminal defendant to raise an ineffective assistance claim in collateral post-conviction proceedings, rather than on direct appeal, the ineffectiveness of the defendant’s post-conviction counsel could provide cause to excuse the defendant’s failure to perfect in state court his challenge to the effectiveness of his trial counsel. Thus, although the Court refused to recognize a constitutional right to counsel (or to the effective assistance thereof) in collateral post-conviction proceedings, it held that ineffective assistance by such counsel would allow a defendant to raise claims – that his state post-conviction counsel should have raised in state court – for the first time in a federal habeas petition.

The question the Justices confronted in Trevino v. Thaler – and resolved in a five-to-four decision issued on Tuesday – is whether Martinez also applies when the state does not require a defendant to raise his ineffective assistance claim in a collateral post-conviction proceeding, but rather strongly encourages him to do so (and imposes various and potentially substantial obstacles to raising such a claim on direct appeal). Writing for the Court, Justice Breyer answered that question in the affirmative.

Opinion author in red. Dissenting Justices in grey.

Opinion author in red. Dissenting Justices in grey.

As the Trevino majority explained, Texas’s bifurcated review scheme for capital cases – where a defendant’s direct appeal and collateral post-conviction proceedings unfold concurrently – has two characteristics that help to drive home Martinez’s application: First, “Texas procedure makes it ‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim’ on direct review.” Thus, the Court reasoned, although there are procedures for expanding the record on post-conviction review to include the extra-record evidence usually at the heart of ineffective assistance cases, the time limits Texas law appears to impose upon those procedures renders it at least highly likely that, in the typical case, a direct appeal will not furnish a meaningful opportunity to challenge the effectiveness of trial counsel. Critically, the Court thereby sidestepped a host of exemplar cases raised by Texas as proof of the ability of its appellate courts to handle ineffectiveness claims on direct appeal; the key, under the Court’s rubric, is what’s true in the typical case, and not at the margins.

Second, “were Martinez not to apply, the Texas procedural system would create significant unfairness,” especially inasmuch as it already expressly encourages defendants to bring their ineffective assistance claims in collateral post-conviction proceedings, rather than on direct appeal. Otherwise, Martinez relief would be withheld “solely because of the existence of a theoretically available procedural alternative, namely direct appellate review, that Texas procedures render so difficult, and in the typical case all but impossible, to use successfully, and which Texas courts so strongly discourage defendants from using.”

Thus, as the majority concluded near the end of its fifteen-page majority opinion, “a distinction between (1) a State that denies permission to raise [a] claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.”

By this language, the Court almost certainly meant that this distinction is one without a legally significant difference. For as Chief Justice Roberts pointed out in a sharply worded dissent joined by Justice Alito (both of whom were in the majority in Martinez), it is a potentially monumental factual distinction insofar as it opens the door for criminal defendants nationwide to argue that they cannot meaningfully raise particular claims on direct appeal – even in those jurisdictions whose post-conviction procedures are far less murky than the bifurcated Texas capital rules at issue in Trevino. As the Chief summarized the result, “today, the Court takes all the starch out of [the narrowness of Martinez] with an assortment of adjectives, adverbs, and modifying clauses: Martinez’s ‘narrow exception’ now applies whenever the ‘state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity’ to raise his claim on direct appeal.” And as Justice Scalia caustically reminded readers in a dissent running thirty-three words (minus the citations and quotations), this is exactly what he and Justice Thomas predicted in their dissent in Martinez, which lamented that the line the Court there sought to draw between the form and function of state post-conviction procedures “lacks any principled basis, and will not last.”

Indeed, it seems clear that Trevino will usher in a wave of new case law in the near term as different jurisdictions grapple with – and are forced to clarify – exactly which claims can and cannot meaningfully be vindicated on direct appeal versus collateral post-conviction proceedings. As the Chief Justice and Justice Scalia both quite clearly grasped (and objected to) in their dissents, that’s exactly the idea.

In Plain English

A criminal defendant is usually allowed to challenge his conviction on the ground that he received “ineffective assistance of counsel” at trial. Some states require such claims to be brought in a separate, “collateral” post-conviction proceeding, rather than on direct appeal. Last year, the Supreme Court ruled – in a case called Martinez v. Ryan — that, in those states, a defendant who failed to raise such a claim in a state post-conviction proceeding because of ineffective assistance by his lawyer in that proceeding could still challenge his trial lawyer’s performance for the first time in proceedings to challenge the constitutionality of his conviction in federal court – proceedings known as “federal habeas.”  In this case, the Court extended its decision in Martinez, holding that it also applies in states that allow ineffective assistance claims to be raised on direct appeal in theory, but that strongly encourage defendants in practice to bring such claims in collateral post-conviction proceedings instead.

Recommended Citation: Steve Vladeck, Opinion analysis: A Texas- (and capital-)specific result to usher in a new wave of case law?, SCOTUSblog (May. 29, 2013, 12:29 PM),