Are habeas claimants who raise an ineffective assistance of trial counsel claim in federal habeas proceedings despite having failed to raise such a claim at the state court level, as allowed under the Martinez exception, then permitted to develop evidence to support these claims despite 28 U.S.C. § 2254(e)(2)’s bar on such federal evidentiary development?
This case asks the Supreme Court whether a provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) bars a federal court from allowing habeas petitioners that fall under Martinez’s procedural-default exception to submit evidence beyond the state record in support of their claims. Petitioners David Shinn and Walter Hensley contend that expanding Martinez’s narrow procedural-default exception risks providing a free pass to federal courts that will incentivize forum-shopping, encourage the withholding of evidence, undermine state sovereignty, and contravene the purpose of AEDPA, which is to limit access to federal evidentiary review. Respondents David Martinez Ramirez and Barry Lee Jones respond that barring evidentiary development in federal court places prisoners in an absurd Catch-22 wherein their procedural defaults are excused due to ineffective counsel and yet they are barred from correcting the deficiencies in their state record due to that same counsel’s negligence. This case implicates federalism concerns over the depth of federal review of state criminal and habeas proceedings and the strength of the Sixth Amendment right to counsel, particularly for indigent, innocent, and mentally ill defendants.
Questions as Framed for the Court by the Parties
Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.
Barry Lee Jones
After the death of his girlfriend’s daughter, Respondent Barry Lee Jones was convicted of felony murder and sentenced to death. Jones v. Shinn at 1216–17. Upon appeal, the Arizona Supreme Court affirmed. Id. at 1218.
Jones, represented by state-appointed post-conviction counsel, subsequently filed a habeas petition in Arizona trial court which included an ineffective assistance of trial counsel claim based on issues such as juror misconduct. Jones v. Shinn at 1218. The court denied the petition and the Arizona Supreme Court declined to review. Id.
Represented by the Arizona Federal Public Defender, Jones filed a federal habeas petition in United States District Court for the District of Arizona raising new ineffective assistance of counsel claims on the grounds that his trial counsel had failed “to conduct sufficient trial investigation . . . [and] sufficient mitigation investigation for sentencing.” Id. The district court held that this claim was procedurally defaulted because of Jones’ failure to raise and exhaust these investigatory failures during the state habeas proceedings. Id. Jones countered that his state post-conviction counsel had also been ineffective by failing to present these failures during the state habeas proceedings. Id. The district court held that this did not excuse the default. Id. at 1218–19.
While Jones’ appeal to the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) was pending, the Supreme Court held in Martinez v. Ryan that an ineffective post-conviction counsel’s failure to raise ineffective assistance of trial counsel claims in state habeas proceedings could not bar a federal court from considering such claims during its own habeas review. Id. The Ninth Circuit remanded to the district court to reconsider Jones’ claim. Id.
The district court held that under Martinez, Jones’ state post-conviction counsel’s ineffectiveness excused the procedural default and that the court could consider evidence supporting the ineffective assistance of trial counsel claim. Id. Under this inquiry, the district court found that Jones’ trial counsel had failed to introduce key evidence casting doubt on his guilt. Id. The court therefore ordered the State to release Jones. Id.
On appeal, the Ninth Circuit affirmed that the district court was permitted to consider evidence supporting the ineffective assistance of trial counsel claim and upheld Jones’ release. Id. at 1236.
Respondent David Martinez Ramirez, a severely mentally handicapped man, was convicted of the murders of his girlfriend and her daughter. Ramirez v. Ryan at 1235. Lacking experience with capital cases, Ramirez’s trial counsel failed to investigate or present evidence of his intellectual disability. Id. at 1235, 1240. The judge sentenced Ramirez to death and the Arizona Supreme Court affirmed. Id. at 1238. The United States Supreme Court denied certiorari. Id.
Ramirez filed a petition for post-conviction relief in state court which failed to raise a claim of ineffective assistance of trial counsel. Id. The post-conviction judge denied relief and the Arizona Supreme Court denied Ramirez’s petition for review. Id.
Ramirez next filed a federal habeas petition. Id. The district court found that Ramirez’s claim was procedurally defaulted because he had failed to raise the claim during state post-conviction review. Id. Ramirez appealed the claim to the Ninth Circuit. Id. While Ramirez’s appeal was pending, the Supreme Court promulgated the Martinez rule. Id.
The Ninth Circuit remanded to the district court to consider Ramirez’s case in light of Martinez. Id. After considering the evidence, the district court ruled that Ramirez’s claim of ineffective assistance of trial counsel was procedurally barred. Id. at 1240.
On appeal, the Ninth Circuit reversed, finding that due to his post-conviction counsel’s ineffectiveness, Ramirez’s procedural default on his claim of ineffective assistance of trial counsel should be excused under Martinez. Id. at 1242, 1244. The Ninth Circuit then remanded to the district court for evidentiary development. Id. at 1242.
The Ninth Circuit denied rehearing en banc in both Jones’ and Ramirez’s cases. Brief for Petitioners, David Shinn, et al. at 1. David Shinn and Walter Hensley, on behalf of Arizona, consolidated the two cases into a single petition for writ of certiorari. Id. The Supreme Court granted certiorari on May 17, 2021. Id. at 2.
Section 2254(e)(2) AND MARTINEZ: SEPARATE BARS OR COEXTENSIVE RULES
Petitioners David Shinn, Director of the Arizona Department of Corrections, Rehabilitation, and Reentry, and Walter Hensley, Warden of the Arizona State Prison Complex-Eyman (collectively “Shinn”) argue that the Ninth Circuit improperly held that a provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(e)(2), poses no obstacle to the introduction of new evidence in federal court if the Martinez exception to procedural default applies. Brief for Petitioners, David Shinn et al. at 23. Shinn notes that Section 2254(e)(2) bars the holding of a federal evidentiary hearing in a federal habeas proceeding “if the applicant has failed to develop the factual basis of a claim in State court proceedings.” Id. at 24. Shinn explains that, according to Williams v. Taylor, if a claimant fails to diligently develop the state court record, the claimant forfeits their chance at a federal forum. Id. In Martinez v. Ryan, however, Shinn concedes that the Supreme Court ruled that a habeas petitioner is not deemed to be at fault if his failure to raise an ineffective trial counsel claim can be attributed to a state postconviction counsel who was also constitutionally ineffective. Id. at 20. Shinn, however, argues that Section 2254(e)(2) and Martinez represent two separate bars, and that a finding that fault is excused in one context does not exempt the petitioner from the other. Shinn contends that Martinez applies within the procedural default context, whereas Section 2254(e)(2) applies to the evidentiary development context. Id. at 22. Therefore, according to Shinn, even if Ramirez and Jones’ procedural defaults are excused under Martinez, Section 2254(e)(2) still independently applies to limit evidentiary review to the state record of their claims unless one of the two listed statutory exceptions under Section 2254(e)(2)(A)-(B) applies. Id. at 29. Since Ramirez and Jones do not invoke either of these exceptions here, Shinn argues that Section 2254(e)(2) remains in effect. Reply of Petitioners at 3.
Respondents Ramirez and Jones contend that Section 2254(e)(2)and Martinez should be read coextensively, such that satisfying Martinez would excuse habeas petitioners from Section 2254(e)(2)’s restrictions to evidentiary development. Brief for Respondents at 31. This is because Ramirez and Jones reason that it would be illogical to restrict a petitioner to an inadequate state court record when Martinez’s underlying purpose was to ensure litigants their Sixth Amendment right to effective trial counsel. Id. at 44. Since the record’s deficiencies are due to ineffective counsel and are therefore not the prisoner’s fault, according to Ramirez and Jones, the prisoner has not “failed to develop” the record within the meaning of Section 2254(e)(2). Id. at 31. Therefore, Ramirez and Jones contend, if a prisoner is deemed not to be at fault under Martinez for his post-conviction counsel’s failure to raise an ineffective counsel claim at the state court level, then he should also not be held to be at fault under Section 2254(e)(2). Id. Ramirez and Jones highlight that since AEDPA, the Court has consistently decided cases permitting evidentiary development for excused procedural defaults. Id. at 38. Therefore, Ramirez and Jones assert, it is nonsensical to conclude that federal habeas courts should be constrained to the charade of reviewing an undeveloped record. Id. at 43. Ramirez and Jones argue that this bar would almost certainly doom these claims to failure, given their inadequacy. Id.
ATTRIBUTION OF COUNSEL’S ERRORS
Shinn argues, in adherence with agency principles, that attorney error is properly attributed to the prisoner. Reply of Petitioners at 5. Shinn further contends that this position is consistent with Section 2254(e)(2) and judicial precedent. Brief for Petitioners at 23. For example, Shinn points out that the decisions in Williams, Holland v. Jackson, and Keeney v. Tamayo-Reyes directly contradict Ramirez and Jones’ position. Id. at 24–25. Williams and Holland, Shinn argues, explained that post-conviction counsel’s ineffectiveness does not excuse a prisoner from failure to develop an adequate state record under Section 2254(e)(2). Id. at 35. Shinn points out that Keeney similarly defined “failed to develop” as attributing a counsel’s faults to the prisoner. Reply of Petitioners at 5.
Ramirez and Jones concede that, typically, the errors of negligent counsel are attributed to their clients. Brief for Respondents at 33. However, Ramirez and Jones note that, under Coleman v. Thompson, this agency-type attribution does not apply where a constitutional violation is implicated. Id. Under Martinez, Ramirez and Jones argue, ineffective postconviction counsel’s failure to raise an ineffective trial counsel claim qualifies as a constitutional violation. Id. at 34. Martinez, Ramirez and Jones argue, describes a highly limited circumstance where the post-conviction proceeding is a prisoner’s first opportunity to raise an ineffective assistance of trial counsel claim. Therefore, Ramirez and Jones argue that if a habeas petitioner’s procedural default is excused under Martinez, the prisoner does not bear the fault for his counsel’s errors. Id. Ramirez and Jones contend that two rounds of counsel ineffectiveness constitutes precisely the type of extreme malfunction in the justice system that the Martinez decision was intended to correct. Id. at 42.
A CATCH-22 OR A BAR CONSISTENT WITH AEDPA’S PURPOSE
According to Shinn, affirming the Ninth Circuit’s holding would contradict Congress’s purpose in enacting AEDPA, which was to dramatically curtail a federal court’s ability to hear new evidence beyond the state record. Brief for Petitioners at 23. Shinn argues that AEDPA eliminated the equitable “cause and prejudice” standard as an avenue for introducing evidence. Id. As Shinn explains, under Coleman, a prisoner can overcome a procedural default by demonstrating cause for the default and actual prejudice as a result. Id. at 27. Shinn notes that, to establish cause under Martinez, a prisoner must demonstrate that post-conviction counsel was ineffective. Id. at 20. Shinn argues that to establish “prejudice,” the prisoner must demonstrate that his underlying ineffective assistance of trial counsel claim is “substantial.” Id. If a prisoner succeeds in fulfilling these two prongs, Shinn explains that, under Martinez, the prisoner’s procedural default is excused. Id. However, Shinn asserts that affirming the Ninth Circuit holding would create an improper Martinez pathway circumventing the AEDPA restrictions to evidentiary development and resurrecting this equitable cause-and-prejudice rule that Congress meant to abolish. Id. at 22, 29. By abolishing the equitable rule, Shinn argues that Congress meant to place even stricter restrictions on the path to federal habeas relief, which would in turn, incentivize greater diligence in developing an adequate record at the state court level. Reply of Petitioners at 8.
Shinn argues, therefore, that the Court should continue to construe Section 2254(e)(2) as it was interpreted in Williams, as attributing post-conviction counsel’s faults to the prisoner. Reply of Petitioners at 15. Under Williams, Shinn notes, Section 2254(e)(2)’s “failed to develop” language in its opening clause is triggered when “there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 25. Shinn argues that upholding this reading would encourage the primacy of state courts as the proper forum for hearing constitutional claims. Reply of Petitioners at 16. Shinn contends that the federal court level would then be properly reserved for extreme cases of malfunction and not merely for ordinary error correction. Id. at 14. Shinn argues finally that ruling in favor of Ramirez and Jones would improperly allow a court-created equitable rule to take precedence over a statute. Reply of Petitioners at 10.
Ramirez and Jones respond that Shinn’s reading of AEDPA would compromise that statute’s core function, which is to protect federal rights from extreme malfunction in state proceedings. Brief for Respondents at 25. If a prisoner suffers two rounds of ineffective trial counsel and then is subsequently also barred from developing an adequate record due to their post-conviction counsel’s negligence, Ramirez and Jones argue that the prisoner is bound in an absurd Catch-22, because the prisoner is never able to develop the claims they did not have a meaningful opportunity to raise. Id. at 41. Ramirez and Jones contend that such a result would deprive prisoners of access to their Sixth Amendment right to effective trial counsel. Id. at 44.
Ramirez and Jones contend that it would therefore be fundamentally illogical to fault a prisoner for failing to develop evidence for a claim when they have been found not to be at fault for failing to raise that claim in the first place. Id. at 28. To correct this injustice, Ramirez and Jones assert that the exception in Martinez should apply equally to the Section 2254(e)(2) fault inquiry. Id. at 36. Following this logic, Ramirez and Jones argue that the prisoner does not bear the blame for the insufficiency of the state record, because they have demonstrated a substantial claim of ineffective postconviction counsel under Martinez in order to excuse their ineffective trial claims’ procedural defaults. Id. Ramirez and Jones note that every court of appeals that has considered this issue thus far has reached the same conclusion: that a petitioner who is found not to be at fault for failing to raise a claim is thereby also not at fault for failing to develop evidence for it. Id. at 40–41. Therefore Ramirez and Jones contend that the Supreme Court should rule likewise in order to uphold the constitutional protections at stake in AEDPA and Martinez. Id. at 44.
PROTECTING STATE INTERESTS AND MINIMIZING FEDERAL COURTS’ BURDEN
Eighteen states (collectively the “States”), in support of Shinn, contend that Section 2254(e)(2) should be applicable to federal habeas review because it promotes AEDPA’s overall goals of federal-state comity, finality, and federalism. See Brief of Amici Curiae The States of Texas et al., in Support of Petitioners at 20. In particular, the States assert that Section 2254(e)(2)’s restrictions reflect Congress’ intention to respect state judicial systems as the primary means for habeas relief and the general “presumption that state-court proceedings do not often present the sort of catastrophic miscarriages of justice that federal habeas relief is meant to cure.” Id. at 4. Despite this congressional intent, the States claim that in their experiences litigating in the various circuits which permit evidentiary development under Martinez, they have witnessed significant “‘intru[sion] on state sovereignty” and the enormous burden which such evidentiary development places on the courts and litigants alike. Id. The States argue permitting habeas petitioners to sidestep Section 2254(e)(2)’s restrictions fundamentally “aggravate[s] the harm to federalism that federal habeas review necessarily causes” and would “invite petitioners to sandbag state courts” by deliberately foregoing ineffective assistance of counsel claims at the state level in favor of attempting to gain federal post-conviction habeas relief. Id. at 23, 27.
The Federal Defender Capital Habeas Units (“CHUs”), in support of Ramirez and Jones, counter that as a practical matter, the risk to federal-state comity, finality, and federalism is minimal and therefore, there is little need to use Section 2254(e)(2) to protect those principles. Brief of Amici Curiae Federal Defender Capital Habeas Units, in Support of Respondents at 9. The CHUs explain that in their experience, Martinez hearings are rarely carried out and have nonetheless permitted the States to independently operate their criminal justice systems, pointing out that Texas alone has carried out fourteen executions since the first Martinez-related appeal was filed. Id. The CHUs also contend that it is unrealistic to expect defense attorneys to use “sandbagging” when such a strategy would require deferring a defendant’s best chance for acquittal or sentence reduction for years on the extremely rare chance of obtaining federal habeas relief. Id. at 10. The Habeas Scholars agree, asserting that as a matter of federalism and federal-state comity, the burden of Martinez on federal courts has been minimal as it is a very narrow exception to the Section 2254(e)(2) rule. Brief of Amici Curiae Habeas Scholars, in Support of Respondents at 6. After analyzing 1200 cases seeking to apply Martinez in three different states under three different circuit jurisdictions, the Habeas Scholars found that fewer than four percent received an evidentiary hearing—thereby demonstrating that federal courts understand how to practically apply Martinez to respect and protect the States’ concerns of comity, finality, and federalism. Id. at 7–9.
SIXTH AMENDMENT PROTECTIONS FOR INDIGENT CRIMINAL DEFENDANTS
The Criminal Justice Legal Foundation (“CJLF”), in support of Shinn, contends that the Sixth Amendment simply is inapplicable in the circumstances implicated in these cases. See Brief of Amici Curiae Criminal Justice Legal Foundation, in Support of Petitioners at 15. CJLF argues that judicial precedent establishes that the Sixth Amendment right to counsel does not extend to post-conviction collateral review and that the Supreme Court explicitly refrained from using the Sixth Amendment in Martinez as a basis for the rule. Id. As such, CJLF asserts that Martinez is not a constitutional rule and therefore, habeas seekers neither have, nor should have, constitutional protection or rights in these circumstances. Id. Rather, if the current rule under Section 2254(e)(2) provides too significant of an evidentiary burden and is unfair to habeas seekers, then Congress should fix it, not the courts. Id. at 17.
The Arizona Capital Representation Project and Arizona Center for Disability Law, in support of Ramirez and Jones, argue that adopting Shinn’s position would implicitly overrule Martinez, thereby undermining the Sixth Amendment right to effective assistance of counsel in states such as Arizona where there is no other “mechanism for litigating post-conviction counsel’s ineffectiveness [in raising such claims.]” Brief of Amici Curiae The Arizona Capital Representation Project and Arizona Center for Disability Law, in Support of Respondents at 15. The Bipartisan Former Department of Justice Officials and Former Federal Prosecutors add that this would be fundamentally unfair as foreclosing evidentiary development of ineffective assistance of trial counsel claims under Martinez would disproportionately affect indigent defendants, capital and non-capital alike, who receive overworked, under-resourced, and/or under-experienced trial counsel. Brief of Amici Curiae Bipartisan Former Department of Justice Officials and Former Federal Prosecutors, in Support of Respondents at 7. The American Bar Association concurs, explaining that “Sixth Amendment violations are discovered with some frequency.” Brief of Amici Curiae American Bar Association, in Support of Respondents at 8–10. The Innocence Network adds that “empirical evidence confirms that ineffective assistance is a leading cause of wrongful convictions,” therefore highlighting the ability to raise ineffective assistance of counsel claims as a matter of fundamental fairness for innocent defendants, including possibly Jones himself. See Brief of Amici Curiae The Innocence Network, in Support of Respondents at 7, 10.
The authors would like to thank Professor John H. Blume for his guidance and insights into this case.
- Liliana Segura, His Conviction Was Overturned Amid Evidence of Innocence. The Supreme Court Could Throw it All Out., The Intercept (Jul. 31, 2021).
- Supreme Court Case Threatens to Deny Access to Federal Courts to Death-Row Prisoners Who Received Ineffective State Representation, Death Penalty Information Center (Sept. 24, 2021).