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U.S. Supreme Court: habeas petitioner’s procedural default may be excused if state rules do not offer defendants meaningful opportunity to present IAC claim on direct appeal

Carlos Trevino v. Thaler, USSC No. 11-10189, 5/28/13

United States Supreme Court decisionvacating and remanding 449 Fed. Appx. 145 (5th Cir. Nov. 14, 2011)

Last term in Martinez v. Ryan, 132 S. Ct. 1309 (2012), a case arising out of Arizona, the Court held that where a state’s rules of appellate procedure allowed a state prisoner to raise an ineffective assistance of trial counsel claim only on collateral review, not direct appeal, and the prisoner either had no counsel or ineffective counsel during the collateral review process, the claim of ineffective assistance of trial counsel is not procedurally defaulted and may be heard by the federal habeas court. The Court now concludes that Martinez applies to cases arising under the appellate  rules of Texas, which permit but do not require an ineffective assistance of trial counsel claim to be made on direct appeal:

…[W]e believe that the Texas procedural system—as a matter of its structure, design, and operation—does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal. What the Arizona law prohibited by explicit terms, Texas law precludes as a matter of course. And, that being so, we can find no significant difference between this case and Martinez. The very factors that led this Court to create a narrow exception to Coleman [v. Thompson, 501 U.S. 722 (1991)] in Martinez similarly argue for the application of that exception here. (Slip op. at 13).

The Court finds Texas’s rules functionally indistinguishable from Arizona’s for two reasons: First, Texas makes it “virtually impossible” to adequately present an ineffective assistance of trial counsel claim on direct review because of short deadlines that require a new trial motion within 30 days of sentencing, long before transcripts are usually prepared and before appellate counsel can complete an investigation of the claim. (Slip op. at 8-10). Second, Texas courts have in effect told defendants to raise claims of ineffective assistance of trial counsel on collateral, rather than on direct, review because direct review proceedings are inadequate to provide a full record for evaluation of the claim in all but a few cases. (Slip op. 11-13).

Given this actual practice, failing to consider the ineffectiveness of counsel handling the  initial collateral review proceeding as a potential “cause” for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective assistance-of-trial-counsel claim. “Thus, for present purposes, a distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.” (Slip op. at 14).

Trevino’s direct appeal lawyer and his collateral review lawyer both failed to raise a claim of ineffective assistance of counsel, and the Fifth Circuit held the claim was procedurally defaulted. Given its holding, the Court vacates the lower court’s decision and remands the case for determination under Martinez of whether the claim is “substantial” and whether collateral review counsel was ineffective for failing to raise it. (Slip op. at 8, 15).

A laudable example of not elevating the form of the state’s appellate rules over their substance. That said, the decision may open the door to more case-by-case examination of the form and substance of other states’ appellate procedures–a result feared by two dissenters (Roberts and Alito) because of what they see as an “opaque and malleable” standard–and to more excusing of procedural default. (Dissent at 4). Scalia (joined by Thomas) also dissents, quoting his dissent in Martinez.

As noted in our post on Martinez, Wisconsin is exceptional in providing a real ability to make ineffective assistance of trial counsel claims on direct appeal, so the question of what our procedures allow or require should not arise in a federal habeas challenge to a Wisconsin conviction. Practitioners handling habeas cases from other states, however, may find the decision provides an avenue to bring a claim that otherwise may have been procedurally barred.

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