Kovarsky on Martinez and the Roberts Post-Conviction Project
Lucky for us, my brilliant colleague Lee Kovarsky took some time out of his whirlwind schedule to help walk us through the Supreme Court’s post-conviction decision in Martinez v. Ryan. I’ve blogged about Professor Kovarsky before–he is an expert on habeas corpus whose newest work, entitled “A Constitutional Theory of Habeas Power,” will be published by the Virginia Law Review. He is also amidst writing a textbook for Foundation Press entitled “Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation” (forthcoming 2013) (with Brandon Garrett). Professor Kovarsky recently argued a habeas case before the Fifth Circuit and helped write the ABA Amicus Brief in Martinez.
Martinez and the Roberts Post-Conviction Project*
Almost under the radar, the Roberts Court has reconfigured the way this country conducts post-conviction review. Years from now, we may consider a case decided this Tuesday, Martinez v. Ryan, a seminal entry in that shift. Perhaps Martinez was reported so sparingly because it was so complicated, but its complexity shouldn’t obscure its importance. (Stephen Vladeck has a characteristically insightful explanation of Martinez up on SCOTUSBLOG.)
The “Roberts Post-Conviction Project” has two moving parts. First, the Project involves a series of decisions promoting state collateral review as the “main event” for post-conviction challenges. Second, and at the same time, the Project has generated incentives for states to provide more process and better lawyers in those proceedings. The Project is hardly a return to thick, Warren-era habeas review of state criminal procedure, but it does slightly moderate one rhetorical excess of Rehnquist post-conviction jurisprudence—the proposition that state judges are always as good as their federal counterparts at enforcing federal constitutional rights.
Criminal process for convicted state prisoners subdivides roughly into the following phases: (1) direct appellate review of the conviction; (2) a state post-conviction disposition subject to state appellate review; and (3) a federal habeas proceeding with federal appeals. For decades, Congress and the Supreme Court have been recalibrating federal habeas review to defer to state post-conviction outcomes. Most recently, in Cullen v. Pinholster (2011), the Supreme Court held that (generally) federal habeas relief could issue only on evidence presented to a state post-conviction court.
The problem is that, for decades, state post-conviction review—the first place that a prisoner may assert many important constitutional challenges to a conviction—has been a legal swamp of vague rules, spotty process, and substandard representation. Many prisoners litigate state post-conviction claims pro se, and many counseled prisoners enjoy no constitutional entitlement to competent representation. Even for strong constitutional claims, forfeiture often follows a state prisoner’s failure to successfully navigate unthinkably complex state post-conviction law either (1) without representation or (2) with a bad lawyer that the state underpays.
And federal habeas law imposes all sorts of severe penalties when state post-conviction representation goes predictably awry. For instance, the federal limitations statute was—until recently—unforgiving about lost portions of the limitations period attributable to even the most appalling state post-conviction representation. Moreover, at least pre-Martinez, when incompetent state post-conviction representation forfeited a claim on a state procedural ground, that claim would be inexcusably defaulted on federal habeas review.
The Court heard Martinez v. Ryan on October 4, 2011. Twenty-four State Attorneys General signed an Amicus Brief in support of Arizona, as did the United States. By mid-March 2012, the Court had still failed to announce a decision. It was clear that something serious was happening, but nobody had a good sense of what that something was. As it turns out, the prisoner won pretty big. Although the opinion stopped short of announcing a constitutional right to a state post-conviction attorney, its decision will nonetheless improve the representation provided at that phase of criminal process.
Kennedy wrote, and was joined by Roberts, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. (Scalia and Thomas dissented.) The head count is a pleasant surprise for those who remain skeptical that Roberts and Alito are willing to break meaningfully from Scalia and Thomas on the harsh application of procedural rules on federal habeas review.
II. The Head Count
Before I get into the doctrinal significance of the case, a little more about the head count—which I actually don’t find as surprising as many others do. Whatever the durability of a Roberts-Scalia-Thomas-Alito coalition on Fourth, Fifth, and Sixth Amendment procedure, the newer Justices have frequently broken from Scalia and Thomas in post-conviction cases implicating either innocence or the efficacy of state post-conviction proceedings. In the Troy Davis case (2009), Roberts and Alito did not sign on to Scalia’s dissenting opinion arguing that a “naked” claim of “actual innocence” was not a constitutional challenge cognizable under the federal habeas statute. In Holland v. Florida (2010), Roberts and Alito both endorsed, for the federal habeas limitations statute, an equitable tolling exception for substandard state post-conviction representation. (Roberts preferred a more lenient standard than Alito; Scalia and Thomas dissented.) In Maples v. Thomas (2012), Roberts and Alito sided with the Court in holding that attorney abandonment could excuse a claim that had been “procedurally defaulted” in state court. (Roberts joined the portion of the opinion criticizing Alabama’s capital sentencing scheme, which, among other things, paid its death penalty attorneys around 30 dollars per hour and capped payment at a thousand dollars; Scalia and Thomas dissented). Martinez reflects an increasingly-salient “swing bloc” of Bush-43 appointees plus Kennedy, although the latter clearly remains the vote to watch.
III. The Practical Issues
Understanding the actual Martinez issue—and, therefore, why the decision was so important—requires explaining two legal concepts. The first is easy: my trial lawyer was bad. This is a Sixth Amendment “ineffective-assistance-of-counsel” claim (“trial-phase IAC claim”). And a trial-phase IAC claim is more than just the idea that the lawyer was bad, but that the lawyer was “constitutionally” ineffective, providing unreasonably substandard representation. IAC claims can provoke strong reactions from judges and lawyers. On the one hand, state and federal courts expend many resources adjudicating IAC claims; on the other hand, adequate legal representation is something that a lot of people in this country take pretty seriously. Siphoning IAC adjudication out of direct appellate review is a good idea for the reasons set forth below—but not if the post-conviction presentation of the IAC claims stinks.
Now to the second concept, which is not easy at all: the “procedural default” doctrine in federal habeas law. Remember that state prisoners generally have to present their IAC claims to state courts before they present them to federal courts. A prisoner might present the claim that his trial lawyer was ineffective during an appeal from the conviction itself. In most cases, however, adjudicating the performance of trial counsel is impossible in that posture. The ineffectiveness of trial counsel is usually proven by stuff that is not in the trial record: did the lawyer interview such and such witness; did the lawyer get a psychiatric opinion; did the lawyer fail to provide crucial information to the client; was the lawyer on psychedelic drugs; and so on and so forth. For that reason, most IAC claims by state prisoners can be made for the first time only on collateral (post-conviction) review.
Consider the typical scenario where there’s no requirement that a state post-conviction lawyer provide adequate representation, or where a prisoner initiates post-conviction litigation pro se. The state post-conviction proceeding is the first place where prisoners can raise their IAC claims. If substandard state post-conviction litigation forfeits a trial-phase IAC claim, then a prisoner needs a federal habeas proceeding to enforce their constitutional right to counsel. Moreover, a prisoner has to show “cause and prejudice” to overcome the procedural default.
Before Martinez, only constitutionally ineffective performance could constitute “cause” for forfeiting an IAC claim. But state post-conviction representation could never be constitutionally ineffective because the federal constitution does not require such representation. Post-conviction representation could never constitute the “cause” necessary to obtain federal merits review! Notwithstanding the frivolity of many IAC challenges, Martinez took the inability to present an IAC claim pretty seriously:
A prisoner’s inability to present a claim of trial error is of particular concern when the claim is one of ineffective assistance of counsel. The right to the effective assistance of counsel at trial is a bedrock principle in our justice system. It is deemed as an “obvious truth” the idea that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon v. Wainwright (1963). Indeed, the right to counsel is the foundation for our adversary system.
This is pretty strong stuff, and Martinez takes some pretty strong steps towards fixing this problem. The Court did not take impose a federal constitutional rule of effective representation in post-conviction proceedings, a holding that would have overruled Coleman v. Thompson (1991), a sacred cow of Rehnquist-era habeas jurisprudence. Instead of creating a constitutional right to an attorney in post-conviction proceedings, the Court simply announced that a constitutional right to an attorney in post-conviction proceedings was not necessary to show “cause” for a procedural default. The Court instead fashioned a prudential rule that substandard post-conviction representation can excuse a procedural default and permit a federal court to conduct merits review of a trial-phase IAC claim.
IV. The Apoplectic Scalia Dissent
Justice Scalia concludes by calling the Court opinion a “monstrosity,” and along the way remarks that Kennedy “insults the intelligence” of lawyers everywhere. But the Court’s prudential holding had Scalia in orbit before the first page of his dissent was complete:
Let me get this straight: Out of concern for the values of federalism; to preserve the ability of our States to provide prompt justice; and in light of our longstanding jurisprudence holding that there is no constitutional right to counsel in state collateral review; the Court, in what it portrays as an admirable exercise of judicial restraint, abstains from holding that there is a constitutional right to counsel in initial-review state habeas. After all, that would have meant, in a case such as the one before us, that failing to provide assistance of counsel, or providing assistance of counsel that falls below the [IAC] standard, would constitute cause for excusing procedural default. Instead of taking that radical step, the Court holds that, for equitable reasons, in a case such as the one before us, failing to provide [adequate] assistance of counsel . . . constitutes cause for excusing procedural default. The result, of course, is precisely the same.
There’s a lot wrong with this. Most importantly, Justice Scalia makes it sound like the Court has replaced a constitutional rule with a prudential rule. That characterization has inch-deep rhetorical appeal, but is not true. The cause-and-prejudice excuse for defaulted claims is judge made. Heck, even the doctrine of procedural default is judge made. There’s nothing all that remarkable about incorporating the ordinary constitutional standard for adequate attorney performance to a context that probably required some sort of prudential rule. Scalia is also wrong in saying that there’s no difference between attorney-performance-as-cause and a constitutional rule that prisoners are entitled to lawyers on state post-conviction review. That’s not right either. If the Constitution required states to provide adequate post-conviction representation, then any failure to do so would be an independent basis for relief that a prisoner might assert in state or federal court. By designating deficient post-conviction representation as a potential excuse for default, all the Court did was provide a gateway for a federal court to review the underlying IAC claim. And that gateway still requires a showing that the underlying IAC claim is “substantial,” a standard that federal habeas law requires courts to apply in several other contexts.
Scalia is right about some other things, though. For instance, he correctly observes that, while the rationale for the decision was that state post-conviction review is ordinarily the first place that a prisoner can raise an IAC claim, IAC claims are hardly unique in that respect. Martinez is probably a beachhead for the set of all claims that must be raised for the first time on state post-conviction review. Moreover, he correctly surmises that states will have to choose, on the one hand, between providing post-conviction lawyers to litigate IAC claims and, on the other, litigating the merits of that claim in federal court. Seems fair to me, but Scalia’s correct in that Martinez forces that choice.
* In the interest of full disclosure, I was a primary author on the Amicus Brief for the American Bar Association in this case.