Effective trial counsel after Martinez v. Ryan: Focusing on the adequacy of state procedures

Yale Law Journal

Volumn 122, Issue 8, 2013, Pages 2604-2625

  Primus, Eve Brensike ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 84879802980     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (84)

1. 372 U.S. 335 (1963).
2. ABA Standing Comm. on Legal Aid & Indigent Defendants, GIDEON's Broken Promise: AMERICA's Continuing Quest for Equal Justice (2004), http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_bp_right_to_counsel_in_criminal_proceedings.authcheckdam.pdf [hereinafter Broken Promise].
3. See, e.g., Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 793 (2009) (arguing that federal habeas corpus review should be eliminated for most prisoners and the money saved should be diverted to fund indigent defense delivery systems).
4. See, e.g., Robert C. Boruchowitz, Diverting and Reclassifying Misdemeanors Could Save $1 Billion per Year: Reducing the Need For and Cost of Appointed Counsel, Am. Const. SOC'y for L. & POL'y 1 (Dec. 2010), http://www.acslaw.org/sites/default/files/Boruchowitz_-_Misdemeanors.pdf.
5. See, e.g., Eve Brensike Primus, Litigation Strategies for Dealing with the Indigent Defense Crisis, Am. Const. SOC'y for L. & POL'y 1 (Sept. 2010), http://www.acslaw.org/files/Primus%20-%20Litigation%20Strategies.pdf.
6. See, e.g., Eve Brensike Primus, Litigation Strategies for Dealing with the Indigent Defense Crisis, Am. Const. SOC'y for L. & POL'y 1 (Sept. 2010), http://www.acslaw.org/files/Primus%20-%20Litigation%20Strategies.pdf.
7. 132 S. Ct. 1309 (2012).
8. These ineffective assistance of trial counsel claims are often referred to as Strickland claims after the Supreme Court case that initially recognized a Sixth Amendment right to effective trial counsel. See Strickland v. Washington, 466 U.S. 668, 687-88, 693 (1984) (holding that, in order to prevail on a claim of trial attorney ineffectiveness, a defendant must show that (1) counsel's performance was deficient, meaning that the attorney performed unreasonably given prevailing norms of practice, and (2) this deficient performance prejudiced the defense, meaning that counsel's errors were serious enough to undermine confidence in the outcome of the trial).
9. Cf. Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L.J. 1035 (1977) (explaining how federal habeas corpus review of state criminal convictions encourages an important dialogue between state and federal courts about the scope of constitutional rights).
10. See Nancy J. King, Fred L. Cheesman II & Brian J. Ostrom, Final Technical Report: Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996, at 45 (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf (noting that in forty-two percent of noncapital cases and twenty-eight percent of capital cases, the federal district court dismissed the claims without reaching the merits).
11. See Nancy J. King, Fred L. Cheesman II & Brian J. Ostrom, Final Technical Report: Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996, at 45 (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf (noting that in forty-two percent of noncapital cases and twenty-eight percent of capital cases, the federal district court dismissed the claims without reaching the merits).
12. See Lee v. Kemna, 534 U.S. 362 (2002).
13. See Wainwright v. Sykes, 433 U.S. 72 (1977).
14. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995).
15. See Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 Cornell L. Rev. 679 (2007) (documenting this problem).
16. See Commonwealth v. Grant, 813 A.2d 726, 734-36 (Pa. 2002) (noting that the federal courts and the overwhelming majority of state courts refuse to hear ineffective assistance of trial counsel claims on direct appeal).
17. Ineffectiveness claims about what a trial attorney did that are clear on the face of the trial record often require extrarecord development as well, because the appellate court needs to conclude that the trial attorney's decision was not a strategic one in order to find deficient performance. As a result, testimony from defense counsel is often crucial.
18. Murray v. Carrier, 477 U.S. 478, 488 (1986).
19. See Coleman v. Thompson, 501 U.S. 722, 753-54 (1991) (emphasizing that, while constitutionally ineffective attorney performance is "imputed to the State" and thus "external to the defense, " errors committed by an attorney who is not constitutionally guaranteed to the defendant do not establish cause "because the attorney is the [defendant]'s agent when acting, or failing to act, in furtherance of the litigation, and the [defendant] must 'bear the risk of attorney error'" (quoting Murray, 477 U.S. at 488).
20. Powell v. Alabama, 287 U.S. 45 (1932).
21. See, e.g., Livingston v. Kansas, 407 F. App'x 267, 273 (10th Cir. 2010).
22. See, e.g., Livingston v. Kansas, 407 F. App'x 267, 273 (10th Cir. 2010).
23. See, e.g., Erik Eckholm, Citing Workload, Public Lawyers Reject New Cases, N.Y. Times, Nov. 8, 2008, http://www.nytimes.com/2008/11/09/us/09defender.html.
24. See, e.g., Erik Eckholm, Citing Workload, Public Lawyers Reject New Cases, N.Y. Times, Nov. 8, 2008, http://www.nytimes.com/2008/11/09/us/09defender.html.
25. See Martinez v. Ryan, 132 S. Ct. 1309 (2012).
26. Powell v. Alabama, 287 U.S. 45 (1932).
27. Powell v. Alabama, 287 U.S. 45 (1932).
28. 501 U.S. 722 (1991).
29. Powell v. Alabama, 287 U.S. 45 (1932).
30. Powell v. Alabama, 287 U.S. 45 (1932).
31. Powell v. Alabama, 287 U.S. 45 (1932).
32. Martinez, 132 S. Ct. at 1320.
33. Powell v. Alabama, 287 U.S. 45 (1932).
34. Powell v. Alabama, 287 U.S. 45 (1932).
35. Powell v. Alabama, 287 U.S. 45 (1932).
36. Powell v. Alabama, 287 U.S. 45 (1932).
37. Powell v. Alabama, 287 U.S. 45 (1932).
38. Powell v. Alabama, 287 U.S. 45 (1932).
39. A handful of states have established procedures for expanding the record on direct appeal and either require defendants to raise ineffective assistance of trial counsel claims on appeal or give them a choice regarding when to raise the claims. See Tweedell v. State, 462 S.E.2d 181, 183 (Ga. Ct. App. 1995).
40. 132 S. Ct. at 1327 (Scalia, J., dissenting).
41. See, e.g., 7 Wayne R. LAFave et al., Criminal Procedure, § 28.4(d) (3d ed. 2007 & Supp. 2012).
42. A handful of states have established procedures for expanding the record on direct appeal and either require defendants to raise ineffective assistance of trial counsel claims on appeal or give them a choice regarding when to raise the claims. See Tweedell v. State, 462 S.E.2d 181, 183 (Ga. Ct. App. 1995).
43. See Harrington v. Richter, 131 S. Ct. 770, 788 (2011) ("The standards created by Strickland and [28 U.S.C.] § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so. " (citations omitted) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984).
44. A handful of states have established procedures for expanding the record on direct appeal and either require defendants to raise ineffective assistance of trial counsel claims on appeal or give them a choice regarding when to raise the claims. See Tweedell v. State, 462 S.E.2d 181, 183 (Ga. Ct. App. 1995).
45. A handful of states have established procedures for expanding the record on direct appeal and either require defendants to raise ineffective assistance of trial counsel claims on appeal or give them a choice regarding when to raise the claims. See Tweedell v. State, 462 S.E.2d 181, 183 (Ga. Ct. App. 1995).
46. For example, states that continue to locate ineffective assistance of trial counsel claims in state collateral review but fail to appoint competent state postconviction counsel may face systemic adequacy challenges to their state procedures.
47. 132 S. Ct. 912, 924-27 (2012).
48. 130 S. Ct. 2549, 2564-65 (2010).
49. The Supreme Court has also recently broadened its definition of what constitutes ineffective attorney performance by extending Strickland into the plea bargaining process. First, in Padilla v. Kentucky, 559 U.S. 356 (2010), the Court held that trial attorneys were constitutionally ineffective if they fail to advise clients of obvious immigration consequences that flow from plea offers. Then, in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), the Supreme Court declared that bad advice during plea negotiations can give rise to a finding of trial attorney ineffectiveness if it deprives a defendant of a favorable plea.
50. Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012).
51. Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012).
52. Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012).
53. See, e.g., Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
54. See Tex. R. App. P. 21.4 (requiring a motion for a new trial to be filed no later than thirty days after the trial court imposes the sentence).
55. See, e.g., Robinson, 16 S.W.3d at 810 ("While expansion of the record may be accomplished in a motion for new trial, that vehicle is often inadequate because of time constraints and because the trial record has generally not been transcribed at this point. Further, mounting an ineffective assistance attack in a motion for new trial is inherently unlikely if the trial counsel remains counsel during the time required to file such a motion. " (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).
56. See, e.g., Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
57. See, e.g., Lopez, 343 S.W.3d at 143 ("This Court has repeatedly stated that claims of ineffective assistance of counsel are generally not successful on direct appeal and are more appropriately urged in a [state postconviction petition]. ").
58. See Gates v. Thaler, No. 11-70023, 2012 WL 2305855 (5th Cir. June 19, 2012). The Supreme Court recently granted certiorari to address this precise question. Trevino v. Thaler, 449 F. App'x 415 (5th Cir. 2011), cert. granted, 133 S. Ct. 524 (2012).
59. See Arthur v. Thomas, No. 2:01-CV-0983, 2012 WL 2357919 (N.D. Ala. June 20, 2012).
60. See Dansby v. Norris, 682 F.3d 711 (8th Cir. 2012).
61. See Weekly v. Hardy, No. 11 C 9231, 2012 WL 3916269 (N.D. Ill. Sept. 6, 2012).
62. See McGuire v. Warden, Chillicothe Corr. Inst., No. 3:99-cv-140, 2012 WL 5303804 (S.D. Ohio Oct. 25, 2012).
63. See Leberry v. Howerton, No. 3:10-00624, 2012 WL 2999775 (M.D. Tenn. July 23, 2012).
64. See Prokasky v. Glebe, No. C12-5134, 2012 WL 3877746 (W.D. Wash. June 11, 2012).
65. See Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012).
66. See Walker v. Martin, 131 S. Ct. 1120 (2011).
67. Martinez himself raised an alternative argument in the lower courts that Arizona's procedural rules were inadequate. See Martinez v. Schriro, 623 F.3d 731, 734 (9th Cir. 2010).
68. See Brecheen v. Reynolds, 41 F.3d 1343, 1364 (10th Cir. 1994). There has been a substantial dialogue since Brecheen between the Oklahoma state courts and the federal courts about the adequacy of Oklahoma's procedures. See, e.g., English v. Cody, 146 F.3d 1257 (10th Cir. 1998).
69. Brecheen, 41 F.3d at 1364.
70. See Hoffman v. Arave, 236 F.3d 523, 535-36 (9th Cir. 2001).
71. See Jackson v. Shanks, 143 F.3d 1313, 1319 (10th Cir. 1998).
72. See Jackson v. Shanks, 143 F.3d 1313, 1319 (10th Cir. 1998).
73. See Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012) (noting that "[a]bbreviated deadlines to expand the record on direct appeal may not allow adequate time for an attorney to investigate [an] ineffective-assistance claim").
74. See Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012) (noting that "[a]bbreviated deadlines to expand the record on direct appeal may not allow adequate time for an attorney to investigate [an] ineffective-assistance claim").
75. Powell v. Alabama, 287 U.S. 45 (1932).
76. Powell v. Alabama, 287 U.S. 45 (1932).
77. Powell v. Alabama, 287 U.S. 45 (1932).
78. See, e.g., Lee v. Kemna, 534 U.S. 362 (2002) (holding that, although a Missouri state rule requiring defendants to put all requests for continuances in writing was not facially problematic, as applied to a defendant who was surprised in the midst of trial with the disappearance of his subpoenaed witnesses, the application of the rule unduly burdened his due process rights).
79. See, e.g., Lee v. Kemna, 534 U.S. 362 (2002) (holding that, although a Missouri state rule requiring defendants to put all requests for continuances in writing was not facially problematic, as applied to a defendant who was surprised in the midst of trial with the disappearance of his subpoenaed witnesses, the application of the rule unduly burdened his due process rights).
80. The habeas petitioner must, of course, show that his claims were defaulted because of the faulty rule(s), but that is different from a focus on the individual circumstances of his case.
81. See, e.g., Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963).
82. See Gideon v. Wainwright, 372 U.S. 335, 343 (1963).
83. See Gideon v. Wainwright, 372 U.S. 335, 343 (1963).
84. See Gideon v. Wainwright, 372 U.S. 335, 343 (1963).