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Habeas – Procedural Default – IAC Claim “Initial-Review” Collateral Proceeding

Luis Mariano Martinez v. Ryan, USSC No. 10-1001, 3/20/12, reversing and remanding, 623 F.3d 731 (9th Cir. 2011)

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

In this case Martinez’s attorney in the initial-review collateral proceeding filed a notice akin to an Anders brief, in effect conceding that Martinez lacked any meritorious claim, including his claim of ineffective assistance at trial. See Anders v. California, 386 U. S. 738 (1967). Martinez argued before the federal habeas court that filing the Anders brief constituted ineffective assistance. The Court of Appeals did not decide whether that was so. Rather, it held that because Martinez did not have a right to an attorney in the initial-review collateral proceeding, theattorney’s errors in the initial-review collateral proceeding could not establish cause for the failure to comply with the State’s rules. Thus, the Court of Appeals did not determine whether Martinez’s attorney in his first collateral proceeding was ineffective or whether his claim of ineffective assistance of trial counsel is substantial. And the court did not address the question of prejudice. These issues remain open for a decision on remand.

Arizona, like most states and the feds (Wisconsin being a notable exception), requires that an ineffective-assistance claim against trial counsel be brought by collateral attack rather than as part of the direct appeal. Martinez’s direct-appeal counsel informed the court that there were no grounds for a collateral attack. (As the Court puts it, “Martinez’s attorney in the initial-review collateral proceeding filed a notice akin to an Anders brief, in effect conceding that Martinez lacked any meritorious claim, including his claim of ineffective assistance at trial.”) Martinez subsequently sought, with assistance of different counsel, to litigate a claim of ineffective assistance of trial counsel. The state court, relying on a settled rule of Arizona procedure that barred litigation of a claim that could have been raised in a prior collateral proceeding, held that the claim had been defaulted. The 9th Circuit, on Martinez’s subsequent 2254 habeas petition, held that it lacked authority to excuse the default. Generally speaking, the state is under no obligation to provide counsel for purposes of collateral attack; and, where no right to counsel exists, a claim of ineffective assistance of counsel may not be lodged. Coleman v. Thompson, 501 U. S. 722, 754 (1991) (“where the State has no responsibility to ensure that the petitioner was represented by competent counsel … it is the petitioner who must bear the burden of a failure to follow state procedural rules”). And that is essentially what the 9th Circuit held, 623 F.3d at 743 (“We have already concluded that there is no right to the assistance of post-conviction counsel in connection with a state petition for post-conviction relief, such as Martinez asserts in this case. Without a right to the appointment of counsel, there can be no right to the effective assistance of counsel.”). The Court, as indicated in the blockquote above, now reverses. This doesn’t mean that Martinez’s IAC claim is necessarily meritorious, only that it passes the first obstacle, which is that the claim is not absolutely barred. The claim remains subject to default analysis, but now, if he can show “cause and prejudice” for the first appellate attorney’s failure to raise the claim. (“A finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits ofa claim that otherwise would have been procedurally defaulted.” Slip Op., p. 14.)

The Court repeatedly stresses that the result is “narrow,” in that it merely recognizes a limited exception to Coleman, without upsetting the premise of that case, applicable where the State in question bars a litigant from raising a claim on direct appeal:

… Allowing a federal habeas court to hear a claim of ineffective assistance of trial counsel when an attorney’s errors (or the absence of an attorney) caused a procedural default in an initial review collateral proceeding acknowledges, as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim. From this it follows that, when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U. S. 668 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322 (2003) (describing standards for certificates of appealability to issue).

Implications for Wisconsin practice remain to be seen. Of course, Wisconsin procedure, unlike Arizona’s, allows an IAC claim to be brought as part of the direct appeal. Therefore, the right to challenge direct-appeal counsel’s failure to assert an IAC claim isn’t a matter of procedural controversy in the first place. In theory anyway; in practice, the “sufficient reason” serial-litigation bar may present a formidable obstacle, e.g., State v. Balliette, 2011 WI 79. Then again, the outcome in Martinez may put to rest opposition to the very idea that a claim of ineffective assistance of postconviction / appellate counsel indeed supplies a sufficient reason to overcome the serial-litigation bar on collateral attack.

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