Enforcing effective assistance after Martinez

Yale Law Journal

Volumn 122, Issue 8, 2013, Pages 2428-2458

  King, Nancy J ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 84879832880     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (100)

1. 132 S. Ct. 1309 (2012).
2. 132 S. Ct. 1376 (2012).
3. 132 S. Ct. 1399 (2012).
4. Martinez, 132 S. Ct. at 1320.
5. Frye, 132 S. Ct. at 1410-11.
6. E.g., Eve Brensike Primus, Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures, 122 Yale. L.J. 2604, 2608-11 (2013).
7. See, e.g., Eric M. Freedman, Enforcing the ABA Guidelines in Capital State Post-Conviction Proceedings After Martinez and Pinholster, 41 Hofstra L. Rev. (forthcoming 2013).
8. Gray R. Proctor, Habeas Review Under 28 U.S.C. § 2254 After Martinez v. Ryan: Federalization and Forum Shopping for Ineffective-Assistance Claims, 92 Crim. L. Rep. (BNA) 279 (Dec. 5, 2012).
9. Mary Schmid Mergler, Supreme Court Sets Critical New Precedents on Right to Counsel, ACSblog (Mar. 26, 2012), http://www.acslaw.org/acsblog/supreme-court-sets-critical-new-precedents-on-right-to-counsel.
10. Martinez, 132 S. Ct. at 1327 (Scalia, J., dissenting).
11. Brief for the States of Wisconsin et al. as Amici Curiae Supporting Respondent at 36 n.22, Martinez, 132 S. Ct. 1309 (No. 10-1001), 2011 WL 4072899 at *36 (urging the Court not to "articulate a rule that would encourage a State to curtail an avenue of review that it might otherwise make available to its citizens in order to thwart meddling by the federal courts that undermine the finality of state court decisions").
12. See Nancy J. King, Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, 24 Fed. Sent'g Rep. 308, 310 (2012) (reporting final outcomes of more than 2,300 randomly selected federal habeas cases from among those filed nationwide by state prisoners in 2003 and 2004).
13. 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 (2007), https://www.ncjrs.gov/pdffiles1/nij/grants /219559.pdf.
14. Wayne R. LaFave et al., Criminal Procedure § 28.4 (3d ed. 2007 & Supp. 2012).
15. Martinez, 132 S. Ct. at 1320.
16. See, e.g., Matt Adams, Advancing the "Right" to Counsel in Removal Proceedings, 9 Seattle J. Soc. Just. 169 (2010) (arguing that the interests at stake in removal call for assigned counsel and identifying constitutional pathways to the right to assigned counsel in removal proceedings).
17. See Nancy J. King & Joseph L. Hoffmann, Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ 205 n.44 (2011).
18. See Nancy J. King, Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, 24 Fed. Sent'g Rep. 308, 310 (2012) (reporting final outcomes of more than 2,300 randomly selected federal habeas cases from among those filed nationwide by state prisoners in 2003 and 2004).
19. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
20. See, e.g., Gallow v. Cooper, No. 10-30861, 2012 WL 3641520 (5th Cir. Aug. 24, 2012) (applying § 2254(e).
21. See, e.g., Walker v. Kerestes, No. 10-2009, 2012 WL 5494683, at *9 (E.D. Pa. Oct. 25, 2012) (reviewing a pro se petitioner's defaulted IATC claim on its merits and concluding that the petitioner failed "to come forward with some factual matter beyond his own bald assertions").
22. See, e.g., Walker v. Kerestes, No. 10-2009, 2012 WL 5494683, at *9 (E.D. Pa. Oct. 25, 2012) (reviewing a pro se petitioner's defaulted IATC claim on its merits and concluding that the petitioner failed "to come forward with some factual matter beyond his own bald assertions").
23. See Nancy J. King, Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, 24 Fed. Sent'g Rep. 308, 310 (2012) (reporting final outcomes of more than 2,300 randomly selected federal habeas cases from among those filed nationwide by state prisoners in 2003 and 2004).
24. See Nancy J. King, Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, 24 Fed. Sent'g Rep. 308, 310 (2012) (reporting final outcomes of more than 2,300 randomly selected federal habeas cases from among those filed nationwide by state prisoners in 2003 and 2004).
25. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
26. See Petition for a Writ of Certiorari at 20-21, United States v. Davila, No. 12-167 (U.S. Aug. 13, 2012), http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/12-167-Petition.pdf (noting the difficulty of complying with the suggestion in Frye without inadvertently "participating" in negotiations).
27. See Petition for a Writ of Certiorari at 20-21, United States v. Davila, No. 12-167 (U.S. Aug. 13, 2012), http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/12-167-Petition.pdf (noting the difficulty of complying with the suggestion in Frye without inadvertently "participating" in negotiations).
28. See Petition for a Writ of Certiorari at 20-21, United States v. Davila, No. 12-167 (U.S. Aug. 13, 2012), http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/12-167-Petition.pdf (noting the difficulty of complying with the suggestion in Frye without inadvertently "participating" in negotiations).
29. See Victor E. Flango & Patricia McKenna, Federal Habeas Corpus Review of State Court Convictions, 31 Cal. W. L. Rev. 237 (1995) (reporting a study of cases filed between 1990 and 1992 in Alabama, California, New York, and Texas).
30. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
31. Data from Indiana and South Carolina included death penalty cases.
32. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
33. Data from Texas and Washington included filings in the court of appeals.
34. This method is designed to examine differing time lags between conviction and postconviction filing. Total convictions include both felonies and misdemeanors.
35. These figures compare total postconviction review filings in 4 of 22 judicial districts between November 1, 2011, and April 30, 2012 (n = 79), to half the number of annual convictions from those districts.
36. This method is designed to examine differing time lags between conviction and postconviction filing.
37. These figures compare total postconviction review filings in 4 of 22 judicial districts between November 1, 2011, and April 30, 2012 (n = 79), to half the number of annual felony convictions from those districts.
38. See Holly R. Stevens et al., Standing Comm. on Legal Aid & Indigent Defendants, State, County and Local Expenditures for Indigent Defense Services: Fiscal Year 2008, A.B.A. (Nov. 2010), http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent _defendants/ls_sclaid_def_expenditures_fy08.authcheckdam.pdf (surveying funding for indigent defense state by state).
39. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
40. See James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 Yale L. J. 154, 188-200 (2012).
41. Donald J. Harris, Kim Nieves & Thomas M. Place, Dispatch and Delay: Post Conviction Relief Act Litigation in Non-Capital Cases, 41 Duq. L. Rev. 467, 482 (2003) (noting "the inexperience of many of the attorneys appointed to PCRA cases" in Pennsylvania).
42. Telephone Interview with Greg Mermelstein, Division Dir., Mo. State Pub. Defender (Nov. 20, 2012) (reporting that in Missouri, timely filed postconviction cases are not dismissed before appointment and that all indigent petitioners are provided attorneys); Telephone Interview with Scott Whitney, Chief Att'y, Collateral Rev. Div., Off. of the Pub. Defender for Md. (Nov. 19, 2012) (noting that most postconviction cases in Maryland receive counsel, but that a case may be dismissed without hearing or counsel if the petition is complete gibberish, is filed without complying with the rules, is filed more than ten years after sentencing unless "extraordinary cause" is established, or seeks to reopen earlier postconviction proceedings).
43. Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012) (listing Alaska, Arizona, Connecticut, Maine, North Carolina, New Jersey, Rhode Island, and Tennessee).
44. Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012) (listing Alaska, Arizona, Connecticut, Maine, North Carolina, New Jersey, Rhode Island, and Tennessee).
45. E.g., Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. 2012).
46. See Anders v. California, 386 U.S. 738 (1967) (permitting attorneys to withdraw if they determine that no nonfrivolous issues exist on appeal).
47. Case statistics provided by the Mississippi Administrative Office of the Courts (on file with author).
48. Noncapital state habeas petitions in Texas are filed in the trial courts, typically without counsel, and then forwarded to the Court of Criminal Appeals for resolution. See Tex. Code Crim. Proc. Ann. art. 11.07 (West 2007); Tex. R. App. P. 73.3 (2012).
49. E-mail from Veronica Marceny, Policy Analyst, Div. of Planning & Analysis, Co. Office of the State Court Adm'r, to author (Nov. 28, 2012, 5:27 PM) (on file with author) (describing the study and its results).
50. See Gibson v. Turpin, 513 S.E.2d 186, 191 (Ga. 1999).
51. See Jones v. State, 284 P.3d 853, 860 (Alaska Ct. App. 2012).
52. Case statistics provided by the Washington State Administrative Office of the Courts (on file with author).
53. Court of Criminal Appeals Activity: FY 2011, Tex. Cts. 2 (Jan. 2012), http://www.txcourts.gov/pubs/AR2011/cca/2-cca-activity.pdf. Prior years' activity reports do not report the number of live hearings granted.
54. See PDSC Service Delivery Plan for Post Conviction Relief Cases, Pub. Def. Serv. Commission 22 (June 18, 2009), http://www.oregon.gov/OPDS/docs/Reports/postconvictionrelief609.pdf (summarizing testimony of Judge James Hargreaves of the Oregon Circuit Court) ("Only occasionally is live testimony presented at the hearing except for brief testimony by the petitioner.
55. 2012 Court Statistics Report: Statewide Caseload Trends, Jud. Council of Cal. 153 tbl.12f (2012), http://www.courts.ca.gov/documents/2012-Court-Statistics-Report.pdf. In a study of petitions for postconviction relief filed in Pennsylvania trial courts between 1998 and 2001, hearing rates varied by county and judge as well.
56. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
57. See Jones v. State, 284 P.3d 853, 860 (Alaska Ct. App. 2012).
58. See Jones v. State, 284 P.3d 853, 860 (Alaska Ct. App. 2012).
59. Of the 3,801 total cases terminated between 2008 and 2011 (including capital cases), the court granted relief in 1.2%. See case statistics provided by the Washington State Administrative Office of the Courts (on file with author).
60. A list of postconviction case numbers with disposition codes was provided to me by the South Carolina Office of Court Administration in response to a statistics request. For each case showing a disposition code of anything other than "dismissed" or "withdrawn, " I obtained additional docket information from the state court's webpage. See Case Records Search, S.C. Jud. Dep't, http://www.sccourts.org/caseSearch (last visited Apr. 2, 2013).
61. E-mail from Veronica Marceny, Policy Analyst, Div. of Planning & Analysis, Co. Office of the State Court Adm'r, to author (Nov. 28, 2012, 5:27 PM) (on file with author) (describing the study and its results).
62. Case statistics provided by the Administrative Office of Pennsylvania Courts (on file with author). The type of relief granted could not be determined in 24% of cases.
63. See PDSC Service Delivery Plan for Post Conviction Relief Cases, Pub. Def. Serv. Commission 22 (June 18, 2009), http://www.oregon.gov/OPDS/docs/Reports/postconvictionrelief609.pdf (summarizing testimony of Judge James Hargreaves of the Oregon Circuit Court) ("Only occasionally is live testimony presented at the hearing except for brief testimony by the petitioner.
64. Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 Cornell L. Rev. 679, 689 (2007).
65. Wayne R. LaFave et al., Criminal Procedure § 28.4 (3d ed. 2007 & Supp. 2012).
66. See Nancy J. King, Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, 24 Fed. Sent'g Rep. 308, 310 (2012) (reporting final outcomes of more than 2,300 randomly selected federal habeas cases from among those filed nationwide by state prisoners in 2003 and 2004).
67. Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012) (listing Alaska, Arizona, Connecticut, Maine, North Carolina, New Jersey, Rhode Island, and Tennessee).
68. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
69. Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012).
70. Lawrence C. Marshall, Gideon's Paradox, 73 Fordham L. Rev. 955, 960 (2004).
71. Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012) (listing Alaska, Arizona, Connecticut, Maine, North Carolina, New Jersey, Rhode Island, and Tennessee).
72. Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012) (listing Alaska, Arizona, Connecticut, Maine, North Carolina, New Jersey, Rhode Island, and Tennessee).
73. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (holding that review under 28 U.S.C. § 2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits").
74. See Harrington v. Richter, 131 S. Ct. 770 (2011) (ruling relief is unavailable under § 2254(d) if any reasonable application of established Supreme Court precedent supports summary denial).
75. Lawrence C. Marshall, Gideon's Paradox, 73 Fordham L. Rev. 955, 960 (2004).
76. See Jones v. State, 284 P.3d 853, 860 (Alaska Ct. App. 2012).
77. Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012) (listing Alaska, Arizona, Connecticut, Maine, North Carolina, New Jersey, Rhode Island, and Tennessee).
78. See Nancy J. King, Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, 24 Fed. Sent'g Rep. 308, 310 (2012) (reporting final outcomes of more than 2,300 randomly selected federal habeas cases from among those filed nationwide by state prisoners in 2003 and 2004).
79. See, e.g., Erica Hashimoto, Abandoning Misdemeanor Defendants, 25 Fed. Sent'g Rep. 103 (2012) (collecting and discussing authority documenting the denial of counsel to misdemeanor defendants in several states).
80. See, e.g., Erica Hashimoto, Abandoning Misdemeanor Defendants, 25 Fed. Sent'g Rep. 103 (2012) (collecting and discussing authority documenting the denial of counsel to misdemeanor defendants in several states).
81. See, e.g., Bruce A. Green, Prosecutors and Professional Regulation, 25 Geo. J. Legal Ethics 873, 890-91 (2012) (discussing Tennessee and Wisconsin state prosecutors' endorsement of new ethics rules regulating prosecutors' postconviction conduct).
82. See, e.g., Eric M. Freedman, Enforcing the ABA Guidelines in Capital State Post-Conviction Proceedings After Martinez and Pinholster, 41 Hofstra L. Rev. (forthcoming 2013).
83. Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012) (listing Alaska, Arizona, Connecticut, Maine, North Carolina, New Jersey, Rhode Island, and Tennessee).
84. Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012) (listing Alaska, Arizona, Connecticut, Maine, North Carolina, New Jersey, Rhode Island, and Tennessee).
85. Michigan House OKs Overhaul of Indigent Defense, CBS Detroit, Nov. 8, 2012, http://detroit.cbslocal.com/2012/11/08/michigan-house-oks-overhaul-of-indigent-defense. The bill is expected to be taken up by the Michigan Senate in 2013.
86. See David Carroll, The Clock Runs Out on Michigan Reform for This Year, Pleading the Sixth (Dec. 19, 2012), http://sixthamendment.org/?p=1081.
87. See Jones v. State, 284 P.3d 853, 860 (Alaska Ct. App. 2012).
88. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
89. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
90. See Duncan v. State, No. 307790 (Mich. Ct. App. Dec. 12, 2011) (alleging that the state had abdicated its constitutional and statutory responsibility by delegating responsibility for indigent defense to individual counties and failing to fund or provide oversight for such services).
91. Report of the Michigan Advisory Commission on Indigent Defense, Mich. Advisory Commission on Indigent Def. 8 (June 22, 2012), http://www.michigan.gov/documents /snyder/Indigent_Defense_Advisory_Comm_Rpt_390212_7.pdf.
92. Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150, 165, 167-68 (2012) (discussing ways in which prosecutors and judges can "make clean records to bulletproof their convictions").
93. See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006) ("The requirement that a defendant show prejudice in effective representation cases arises from the very nature of the specific element of the right to counsel at issue there-effective (not mistake-free) representation. Counsel cannot be 'ineffective' unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they have).
94. E.g., William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 20-21 (1997) (noting the difficulty of "separat[ing] low-activity but good representation from laziness or incompetence").
95. E.g., William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 20-21 (1997) (noting the difficulty of "separat[ing] low-activity but good representation from laziness or incompetence").
96. See Duncan v. State, No. 307790 (Mich. Ct. App. Dec. 12, 2011).
97. see generally Cara H. Drinan, Lafler and Frye: Good News for Public Defense Litigation, 25 Fed. Sent'g Rep. 138, 138-39 (2012) (discussing recent litigation in the Supreme Court on the right to counsel)
98. Lauren Sudeall Lucas, Unintended Consequences: The Impact of the Court's Recent Cases on Structural Ineffective Assistance of Counsel Claims, 25 Fed. Sent'g Rep. 106 (2012) (same). 109.
99. See Milan Simonich, Constitutional Amendment 5 Would Establish Public Defender Department, Las Cruces Sun-News (N. M), Oct. 8, 2012, http://www.lcsun-news.com/ci_21719567 /las_cruces-financial (describing an amendment to increase the independence of the state public defender, which ultimately passed with 62% of the vote).
100. Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012).