Can a prisoner bring an ineffective assistance of counsel claim regarding his appellate counsel when he procedurally defaulted on the claim due to the ineffective assistance of his state habeas proceeding attorney?
This case presents the Supreme Court with the opportunity to determine whether the Martinez ruling, which held that ineffective assistance of counsel in a state habeas proceeding could provide cause to excuse the procedural default of a claim for ineffective assistance of trial counsel, extends to excuse the procedural default of a claim for ineffective assistance of appellate counsel. Davila argues that Martinez does so extend, since the Court’s reasoning in Martinez applies equally to claims for ineffective assistance of appellate counsel, and the practical consequences of extending Martinez would be limited. The state of Texas argues that the Court should refuse to extend Martinez, since the right to appellate counsel is not as vital as the right to trial counsel and allowing so-called “Davila” claims would unduly burden the court system.
Questions as Framed for the Court by the Parties
Whether the rule established in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013) – ineffective assistance of counsel in an initial-review collateral proceeding can provide cause to overcome the procedural default of a substantial claim of ineffective assistance of trial counsel – also applies to the procedural default of a substantial claim of ineffective assistance of appellate counsel.
In February 2009, Erick Daniel Davila killed Annette Stevenson and her five-year-old granddaughter, Queshawn Stevenson, while the Stevensons were attending a family member’s birthday party in Fort Worth, Texas. All of the party guests were women or young children, except for Queshawn’s father, Jerry Stevenson. Davila, a member of the Bloods gang, had been driving around town with a friend when they decided to have a “shoot em up.” . They targeted the birthday party, and Davila later told police that he was trying to shoot “the guys on the porch and . . . trying to get the fat dude.” The jury convicted Davila of capital murder and sentenced him to death. Capital murder is defined in this instance as the “murder [of] more than one person . . . during the same criminal transaction.”
Davila appealed his conviction, but the Texas Court of Criminal Appeals affirmed the conviction. Thereafter, the United States Supreme Court denied a writ of certiorari. Davila then sought state habeas corpus relief, which both the convicting court and the Texas Court of Criminal Appeals denied. When the United States Supreme Court once again denied Davila’s petition for a writ of certiorari, Davila filed for federal habeas relief.
In his petition for federal habeas relief Davila claimed, among other things, that he had received ineffective trial, appellate, and state habeas counsel. Davila’s argument is based upon his counsels’ responses to a jury instruction given during trial.
During deliberations, the jury asked the judge whether a capital murder charge meant the jury had to decide “did he intentionally murder the specific victims, or . . . did he intend to murder a person and in the process took the lives of 2 others [?]” The judge replied, “A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated or risked is that: a different person was injured, harmed, or otherwise affected.” Davila argues that his counsel for the direct appeal of his conviction should have argued that the judge’s answer incorrectly explained the Texas law on transferred intent. Davila maintains that he should not have been convicted of capital murder because he only had the specific intent to kill one person—the “fat dude” [Jerry Stevenson].
The district court and Fifth Circuit both held that Davila had procedurally defaulted his claim for ineffective assistance of appellate counsel since he did not raise it in his state habeas proceedings.
IS THERE A MEANINGFUL DISTINCTION BETWEEN INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL?
The Supreme Court held in Wainwright v. Sykes that procedural default, which occurs when a prisoner fails to present a federal law claim in state court, bars federal habeas review unless the prisoner can show both: (1) cause for not raising the issue in state court; and (2) prejudice for not having the federal court review the matter. The Court in Coleman v. Thompson elaborated on the definition of cause, holding that ineffective state habeas counsel does not establish cause for excusing procedural default. The parties agree that the Court created an exception to Coleman when it held in Martinez v. Ryan that a prisoner can show cause to excuse a procedural default by proving that his state habeas attorney failed to meet the standard of effective assistance of counsel on an underlying claim of ineffective assistance of trial counsel.
Davila contends that the reasoning in Martinez also applies to underlying claims of ineffective assistance of appellate counsel because there is no meaningful difference between claims of ineffective assistance of appellate counsel and claims of ineffective assistance of trial counsel. Davila notes that appellate courts have failed to establish a reason to distinguish between claims of ineffective assistance of appellate counsel and trial counsel. Davila argues that the Martinez rule should apply to claims of ineffective assistance of appellate counsel because such claims implicate the purpose of Martinez’s equitable exception—“avoid[ing] injustice to the prisoner.” Davila claims that the reasoning in Martinez rests on the fact that if prisoners receive ineffective assistance from counsel at an initial-review collateral proceeding, their claims of ineffective assistance of trial counsel will not be given adequate consideration. Davila maintains that this is a significant problem because effective assistance of counsel, at both the trial and appellate level, is a foundational principle in criminal law, finding its basis in the Sixth Amendment and the Fourteenth Amendment. Davila asserts that because claims of ineffective assistance of appellate counsel—like claims of ineffective assistance of trial counsel—cannot be raised until an initial-review collateral proceeding, the Martinez reasoning applies equally in this case. In other words, Davila argues that all claims of ineffective assistance of counsel that must be raised for the first time in a collateral proceeding have the same effect on the prisoner, regardless of why the claim cannot be raised until that point (i.e. whether due to “a matter of a state requirement, . . . the claim’s inherent nature and the practical realities of the state system, . . . or primarily as a matter of the claim’s inherent nature”). Davila contends that Trevino v. Thaler confirmed that Martinez applies when a claim, for practical reasons, must be asserted collaterally. Further, Davila maintains that prisoners having adequate representation in asserting ineffective assistance of appellate counsel claims is even more important than prisoners having adequate representation in asserting ineffective assistance of trial counsel claims, because the former often requires technical knowledge of the appellate process that prisoners are less likely to possess.
Lorie Davis, Director of the Texas Department of Criminal Justice’s Correctional Institutions Division, (hereinafter “Texas”) counters that there are many meaningful differences between claims of ineffective assistance of appellate counsel and claims of ineffective assistance of trial counsel, thus arguing that the rule in Martinez does not extend to this case. First, Texas argues that the primary concern in Martinez—that no state court could hear the prisoner’s claim—is absent in ineffective assistance of appellate counsel claims. Texas contends that in most substantial ineffective assistance of appellate counsel claims, a trial court will have previously decided the assertion underlying the claim. In addition, Texas disputes Davila’s assertion that effective assistance of appellate counsel is a foundational principle of criminal law grounded in the Constitution. Texas argues that the Court has treated the right to trial counsel as a “bedrock right,” more vital than the right to appellate counsel because the right to appellate counsel is not essential in deciding a defendant’s innocence or guilt. Texas argues that these differences limit Martinez to ineffective assistance of trial counsel claims. Finally, Texas notes a fact crucial to Martinez: the state purposefully moved ineffectiveness of trial claims away from a direct appeal to a collateral proceeding, which, unlike a direct appeal, does not constitutionally guarantee effective counsel. Texas contends that, in contrast, ineffective assistance of appellate counsel claims are always brought in proceedings where the Constitution does not guarantee effective counsel, not because of state action, but because the constitutional right to appointed counsel extends only to the first appeal of right. Thus, Texas argues that because the state action present in Martinez is not present in ineffective assistance of appellate counsel claims, Martinez does not extend to such claims.
PROTECTIONS FOR PRISONERS’ RIGHTS
The National Association of Criminal Defense Lawyers and the American Civil Liberties Union (“NACDL and the ACLU”) maintain that prisoners’ rights will be harmed if the Court does not extend the Martinez exception to ineffective assistance of appellate counsel claims. They argue that initial-review collateral proceedings present the first opportunity to address the merits of ineffective assistance of appellate counsel claims. Thus, the NACDL and the ACLU contend that, by refusing to extend the Martinez exception, the Supreme Court would completely deny prisoners the opportunity to have a court consider their ineffective assistance of appellate counsel claims. Further, the NACDL and the ACLU assert that the right to effective assistance of appellate counsel is vital to the legal system and may be even more critical than the right to effective assistance of trial counsel. To support this argument, the NACDL and the ACLU point to the importance of the appellate process as an avenue to correct errors in criminal trials and the complexities of the appellate process that make the assistance of counsel particularly necessary for prisoners.
On the other hand, Texas contends that there is a meaningful difference between the rights the Court chose to protect in Martinez and the rights at issue in ineffective assistance of appellate counsel claims. Texas argues that the trial is the “main event” where the defendant’s rights and duties are determined and that appellate proceedings are much less centrally important. Texas also points out that the Constitution does not expressly guarantee the right to appellate counsel as it does the right to trial counsel. Additionally, Texas maintains that there are built-in protections for a prisoner’s right to effective assistance of counsel at the appellate level because if an issue is sufficiently substantial, it will have been preserved at trial. Texas notes that, in contrast, for ineffective assistance of trial counsel claims, no court will address the issue when it has procedurally defaulted unless cause is granted.
COSTS TO THE JUDICIAL SYSTEM
Davila asserts that any potential practical consequences arising from extending Martinez to claims of ineffective assistance of appellate counsel are not significant enough to reject the extension. Davila claims that the extension is based on a narrow reading of Martinez and that two requirements cabin the extension’s reach. First, Davila notes that Martinez applies only to claims of ineffective assistance of appellate counsel that are substantial. Although noting that his case meets this standard, Davila maintains that the standard for substantiality is high. Davila explains that litigants meet the substantiality threshold and overcome the presumption of effective assistance of counsel only if the issues ignored by appellate counsel are “clearly stronger” than the issues presented. Moreover, according to Davila, there is no need for discovery or a hearing to initially determine whether a claim is substantial, so the practical effects of extending Martinez would be minimal. Second, Davila argues that an extension of Martinez is limited by the fact that Martinez only applies when no state court will hear the prisoner’s claim of ineffective assistance of counsel.
Texas counters that extending Martinez to claims of ineffective assistance of appellate counsel would strain state judicial resources and overburden the federal court system. First, Texas argues that claims such as the one Davila asserts would appear frequently because these claims are available in all jurisdictions while traditional Martinez claims are not. Texas contends that there are particularly strong incentives to make such claims in capital cases in order to postpone the death penalty. Moreover, Texas maintains that such claims would be costly to investigate, because the court would have to hold evidentiary hearings to evaluate appellate attorneys’ reasoning for failing to raise particular claims. Thus, Texas argues that federal courts would be strained by the increased caseload that would result from an extension of Martinez while states would be burdened because they generally pay for federal review of state prisoners’ claims. Moreover, Texas contends that extending the Martinez exception would threaten the values of finality and comity because federal courts would be forced to constantly reevaluate state court convictions in instances where the state did not have an opportunity to address a prisoner’s concerns itself. Finally, Texas warns that if Martinez extends to claims of ineffective assistance of appellate counsel, litigants would begin arguing for other Coleman exceptions, creating an “avalanche” of litigation. For these reasons, Texas maintains that extending Martinez to claims of ineffective assistance of appellate counsel is not justified, as courts must take into consideration both costs and benefits in determining the scope of the writ of habeas corpus.
- Supreme Court to Review Two Death Penalty Cases, Equal Justice Initiative (Jan. 23, 2017).
- Michael C. Dorf, Supreme Court to Consider When a Criminal Defendant Must Pay With His Life for His Lawyer’s Error, Verdict (Jan. 25, 2017).