Whether the rule established in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.
This case presents a deep-in-the-weeds federal habeas procedural issue, but you’ll want to pay attention if you do federal habeas cases because it may expand (or contract) your ability to raise certain issues not raised in state court proceedings.
Davila claims an instruction given to the jury during his trial for capital murder incorrectly stated the law about the element of intent to kill. Davila’s trial lawyer objected to the instruction at trial, so the issue was preserved; but Davila’s appellate lawyer didn’t raise the issue on direct appeal from the conviction. Compounding that problem, Davila’s lawyer in his state collateral attack didn’t argue that Davila’s appellate lawyer was ineffective for failing to raise the issue on direct appeal. Naturally, during his subsequent federal habeas proceeding, the issue was deemed to be procedurally defaulted.
The Fifth Circuit didn’t buy Davila’s reliance on Martinez and Trevino, though it provided scant reasoning as to why. Other courts have said a bit more, e.g., Hodges v. Colson, 727 F.3d 517, 530-31 (6th Cir. 2013), which construes Martinez as providing a very narrow equitable exception regarding ineffective assistance of trial counsel only. The Seventh Circuit takes the same approach as the Fifth and Sixth (and Eighth and Tenth, for that matter). Long v. Butler, 809 F.3d 299, 315 (7th Cir. 2015). (For more on Long, see here.)
But the reason for Martinez’s equitable exception is that the state collateral review proceeding is the first place a defendant can present a claim of ineffective assistance of trial counsel (except in Wisconsin, of course, which uniquely allows IAC challenges during direct appeal). On that logic, a claim of ineffective assistance of appellate counsel is also a claim that can’t be raised till the collateral attack proceeding, and so the collateral attack lawyer’s failure to raise the issue should likewise be good cause to excuse the prisoner’s default on an issue of appellate counsel’s performance. The dissent in Martinez recognized this point, 132 S.Ct. at 1321 (Scalia, J., dissenting) (saying the rule won’t be limited to ineffective assistance of trial counsel cases because “[t]here is not a dime’s worth of difference in principle between those cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised….”). Whether that logic will be compelling to a Court otherwise dedicated to limiting federal habeas proceedings remains to be seen.
UPDATE: Here’s a post about the case by Michael Dorf of Cornell University Law School.