Martinez v. Ryan

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MARTINEZ v. RYAN, DIRECTOR, ARIZONA DEPART-

MENT OF CORRECTIONS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 10–1001. Argued October 4, 2011—Decided March 20, 2012

Arizona prisoners may raise claims of ineffective assistance of trial

counsel only in state collateral proceedings, not on direct review. In

petitioner Martinez’s first state collateral proceeding, his counsel did

not raise such a claim. On federal habeas review with new counsel,

Martinez argued that he received ineffective assistance both at trial

and in his first state collateral proceeding. He also claimed that he

had a constitutional right to an effective attorney in the collateral

proceeding because it was the first place to raise his claim of ineffec-

tive assistance at trial. The District Court denied the petition, find-

ing that Arizona’s preclusion rule was an adequate and independent

state-law ground barring federal review, and that under Coleman v.

Thompson, 501 U. S. 722, the attorney’s errors in the postconviction

proceeding did not qualify as cause to excuse the procedural default.

The Court of Appeals for the Ninth Circuit affirmed.

Held:

1. Where, under state law, ineffective-assistance-of-trial-counsel

claims must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing

those claims if, in the initial-review collateral proceeding, there was

no counsel or counsel in that proceeding was ineffective. Pp. 5–14.

(a) Given that the precise question here is whether ineffective

assistance in an initial-review collateral proceeding on an ineffective-

assistance-at-trial claim may provide cause for a procedural default

in a federal habeas proceeding, this is not the case to resolve the

question left open in Coleman: whether a prisoner has a constitution-

al right to effective counsel in initial-review collateral proceedings.

However, to protect prisoners with potentially legitimate ineffective-

2 MARTINEZ v. RYAN

Syllabus

assistance claims, it is necessary to recognize a narrow exception to

Coleman’s unqualified statement that an attorney’s ignorance or in-

advertence in a postconviction proceeding does not qualify as cause to

excuse a procedural default, namely, that inadequate assistance of

counsel at initial-review collateral proceedings may establish cause.

Pp. 5–6.

(b) A federal court can hear Martinez’s ineffective-assistance

claim only if he can establish cause to excuse the procedural default

and prejudice from a violation of federal law. Coleman held that a

postconviction attorney’s negligence “does not qualify as ‘cause,’ ” be-

cause “the attorney is the prisoner’s agent,” and “the principal bears

the risk of ” his agent’s negligent conduct, Maples v. Thomas, ante, at

12. However, in Coleman, counsel’s alleged error was on appeal from

an initial-review collateral proceeding. Thus, his claims had been

addressed by the state habeas trial court. This marks a key differ-

ence between initial-review collateral proceedings and other collat-

eral proceedings. Here, where the initial-review collateral proceeding

is the first designated proceeding for a prisoner to raise the ineffec-

tive-assistance claim, the collateral proceeding is the equivalent of a

prisoner’s direct appeal as to that claim because the state habeas

court decides the claim’s merits, no other court has addressed the

claim, and defendants “are generally ill equipped to represent them-

selves” where they have no brief from counsel and no court opinion

addressing their claim. Halbert v. Michigan, 545 U. S. 605, 617. An

attorney’s errors during an appeal on direct review may provide

cause to excuse a procedural default; for if the attorney appointed by

the State is ineffective, the prisoner has been denied fair process and

the opportunity to comply with the State’s procedures and obtain an

adjudication on the merits of his claim. Without adequate represen-

tation in an initial-review collateral proceeding, a prisoner will have

similar difficulties vindicating a substantial ineffective-assistance-at-

trial claim. The same would be true if the State did not appoint an

attorney for the initial-review collateral proceeding. A prisoner’s in-

ability to present an ineffective-assistance claim is of particular con-

cern because the right to effective trial counsel is a bedrock principle

in this Nation’s justice system.

Allowing a federal habeas court to hear a claim of ineffective assis-

tance at trial when an attorney’s errors (or an attorney’s absence)

caused a procedural default in an initial-review collateral proceeding

acknowledges, as an equitable matter, that a collateral proceeding, if

undertaken with no counsel or ineffective counsel, may not have been

sufficient to ensure that proper consideration was given to a substan-

tial claim. It thus follows that, when a State requires a prisoner to

raise a i claim of ineffective assistance at trial in a collateral proceed-

Cite as: 566 U. S. ____ (2012) 3

Syllabus

ing, a prisoner may establish cause for a procedural default of such

claim in two circumstances: where the state courts did not appoint

counsel in the initial-review collateral proceeding for an ineffective-

assistance-at-trial claim; and where appointed counsel in the initial-

review collateral proceeding, where that claim should have been

raised, was ineffective under Strickland v. Washington, 466 U. S.

668. To overcome the default, a prisoner must also demonstrate that

the underlying ineffective-assistance-at-trial claim is substantial.

Most jurisdictions have procedures to ensure counsel is appointed for

substantial ineffective-assistance claims. It is likely that such attor-

neys are qualified to perform, and do perform, according to prevailing

professional norms. And where that is so, States may enforce a pro-

cedural default in federal habeas proceedings. Pp. 6–12.

(c) This limited qualification to Coleman does not implicate stare

decisis concerns. Coleman’s holding remains true except as to initial-

review collateral proceedings for claims of ineffective assistance at

trial. The holding in this case should not put a significant strain on

state resources. A State facing the question of cause for an apparent

default may answer that the ineffective-assistance-of-trial-counsel

claim is insubstantial. The limited circumstances recognized here al-

so reflect the importance of the right to effective assistance at trial.

Other claims may not implicate the same fundamentals of the adver-

sary system. The Antiterrorism and Effective Death Penalty Act of

1996 does not speak to the question presented here, and thus does

not bar Martinez from asserting attorney error as cause for a proce-

dural default. Pp. 12–14.

2. Whether Martinez’s attorney in his first collateral proceeding

was ineffective and whether his ineffective-assistance-at-trial claim

is substantial, as well as the question of prejudice, are questions that

remain open for a decision on remand. P. 15.

623 F. 3d 731, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ.,

joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J.,

joined.

Cite as: 566 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1001

_________________

LUIS MARIANO MARTINEZ, PETITIONER v.

CHARLES L. RYAN, DIRECTOR, ARIZONA

DEPARTMENT OF CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 20, 2012]

JUSTICE KENNEDY delivered the opinion of the Court.

The State of Arizona does not permit a convicted person

alleging ineffective assistance of trial counsel to raise that

claim on direct review. Instead, the prisoner must bring

the claim in state collateral proceedings. In the instant

case, however, petitioner’s postconviction counsel did not

raise the ineffective-assistance claim in the first collateral

proceeding, and, indeed, filed a statement that, after

reviewing the case, she found no meritorious claims help­

ful to petitioner. On federal habeas review, and with new

counsel, petitioner sought to argue he had received ineffec­

tive assistance of counsel at trial and in the first phase of

his state collateral proceeding. Because the state collat­

eral proceeding was the first place to challenge his con-

viction on grounds of ineffective assistance, petitioner

maintained he had a constitutional right to an effective

attorney in the collateral proceeding. While petitioner

frames the question in this case as a constitutional one, a

more narrow, but still dispositive, formulation is whether

a federal habeas court may excuse a procedural default of

2 MARTINEZ v. RYAN

Opinion of the Court

an ineffective-assistance claim when the claim was not

properly presented in state court due to an attorney’s

errors in an initial-review collateral proceeding.

I

A jury convicted petitioner, Luis Mariano Martinez, of

two counts of sexual conduct with a minor under the age

of 15. The prosecution introduced a videotaped forensic

interview with the victim, Martinez’s 11-year-old step­

daughter. It also put in evidence the victim’s nightgown,

with traces of Martinez’s DNA. As part of his defense,

Martinez introduced evidence of the victim’s recantations,

including testimony from the victim’s grandmother and

mother and a second videotaped interview in which the

victim denied any abuse. The victim also denied any

abuse when she testified at trial. App. to Pet. for Cert.

38a–39a. To explain the inconsistencies, a prosecution

expert testified that recantations of child-abuse accusa­

tions are caused often by reluctance on the part of the

victim’s mother to lend support to the child’s claims. Pet.

for Cert. 3. After considering the conflicting evidence, the

jury convicted Martinez. He was sentenced to two consec­

utive terms of life imprisonment with no possibility of

parole for 35 years. App. to Pet. for Cert. 39a.

The State appointed a new attorney to represent Mar­

tinez in his direct appeal. Ibid.; Pet. for Cert. 4. She

made numerous arguments on Martinez’s behalf, includ­

ing a claim that the evidence was insufficient and that

newly discovered evidence warranted a new trial. App. to

Pet. for Cert. 39a. Arizona law, however, did not permit

her to argue on direct appeal that trial counsel was inef­

fective. State v. Spreitz, 202 Ariz. 1, 3, 39 P. 3d 525, 527

(2002). Arizona instead requires claims of ineffective

assistance at trial to be reserved for state collateral

proceedings.

While Martinez’s direct appeal was pending, the attor­

Cite as: 566 U. S. ____ (2012) 3

Opinion of the Court

ney began a state collateral proceeding by filing a “Notice

of Post-Conviction Relief.” Martinez v. Schriro, 623 F. 3d

731, 733–734 (CA9 2010); Ariz. Rule Crim. Proc. 32.4(a)

(2011). Despite initiating this proceeding, counsel made

no claim trial counsel was ineffective and later filed a

statement asserting she could find no colorable claims at

all. 623 F. 3d, at 734. Cf. State v. Smith, 184 Ariz. 456,

459, 910 P. 2d 1, 4 (1996).

The state trial court hearing the collateral proceeding

gave Martinez 45 days to file a pro se petition in support of

postconviction relief and to raise any claims he believed

his counsel overlooked. 623 F. 3d, at 734; see Smith,

supra, at 459, 910 P. 2d, at 4. Martinez did not respond.

He later alleged that he was unaware of the ongoing col­

lateral proceedings and that counsel failed to advise him

of the need to file a pro se petition to preserve his rights.

The state trial court dismissed the action for postconvic­

tion relief, in effect affirming counsel’s determination that

Martinez had no meritorious claims. 623 F. 3d, at 734.

The Arizona Court of Appeals affirmed Martinez’s convic­

tion, and the Arizona Supreme Court denied review. Id.,

at 733.

About a year and a half later, Martinez, now represent­

ed by new counsel, filed a second notice of postconviction

relief in the Arizona trial court. Id., at 734. Martinez

claimed his trial counsel had been ineffective for failing to

challenge the prosecution’s evidence. He argued, for ex­

ample, that his trial counsel should have objected to the

expert testimony explaining the victim’s recantations or

should have called an expert witness in rebuttal. Mar­

tinez also faulted trial counsel for not pursuing an excul­

patory explanation for the DNA on the nightgown. App. to

Brief in Opposition B–6 to B–12. Martinez’s petition was

dismissed, in part in reliance on an Arizona Rule barring

relief on a claim that could have been raised in a previous

collateral proceeding. Id., at B–27; see Ariz. Rule Crim.

4 MARTINEZ v. RYAN

Opinion of the Court

Proc. 32.2(a)(3). Martinez, the theory went, should have

asserted the claims of ineffective assistance of trial coun­

sel in his first notice for postconviction relief. The Arizona

Court of Appeals agreed. It denied Martinez relief be­

cause he failed to raise his claims in the first collateral

proceeding. 623 F. 3d, at 734. The Arizona Supreme

Court declined to review Martinez’s appeal.

Martinez then sought relief in United States District

Court for the District of Arizona, where he filed a petition

for a writ of habeas corpus, again raising the ineffective­

assistance-of-trial-counsel claims. Martinez acknowledged

the state courts denied his claims by relying on a well­

established state procedural rule, which, under the doc­

trine of procedural default, would prohibit a federal court

from reaching the merits of the claims. See, e.g., Wain-

wright v. Sykes, 433 U. S. 72, 84–85, 90–91 (1977). He

could overcome this hurdle to federal review, Martinez

argued, because he had cause for the default: His first

postconviction counsel was ineffective in failing to raise

any claims in the first notice of postconviction relief and in

failing to notify Martinez of her actions. See id., at 84–85.

On the Magistrate Judge’s recommendation, the District

Court denied the petition, ruling that Arizona’s preclusion

rule was an adequate and independent state-law ground

to bar federal review. App. to Pet. for Cert. 36a. Martinez

had not shown cause to excuse the procedural default,

the District Court reasoned, because under Coleman v.

Thompson, 501 U. S. 722, 753–754 (1991), an attorney’s

errors in a postconviction proceeding do not qualify as

cause for a default. See id., at 754–755.

The Court of Appeals for the Ninth Circuit affirmed.

The Court of Appeals relied on general statements in

Coleman that, absent a right to counsel in a collateral

proceeding, an attorney’s errors in the proceeding do not

establish cause for a procedural default. Expanding on

the District Court’s opinion, the Court of Appeals, citing

Cite as: 566 U. S. ____ (2012) 5

Opinion of the Court

Coleman, noted the general rule that there is no constitu­

tional right to counsel in collateral proceedings. 623 F. 3d,

at 736. The Court of Appeals recognized that Coleman

reserved ruling on whether there is “an exception” to this

rule in those cases “where ‘state collateral review is the

first place a prisoner can present a challenge to his convic­

tion.’ ” 623 F. 3d, at 736 (quoting Coleman, supra, at 755).

It concluded, nevertheless, that the controlling cases

established no basis for the exception. Certiorari was

granted. 563 U. S. ___ (2011).

II

Coleman v. Thompson, supra, left open, and the Court of

Appeals in this case addressed, a question of constitution­

al law: whether a prisoner has a right to effective counsel

in collateral proceedings which provide the first occasion

to raise a claim of ineffective assistance at trial. These

proceedings can be called, for purposes of this opinion,

“initial-review collateral proceedings.” Coleman had sug-

gested, though without holding, that the Constitution

may require States to provide counsel in initial-review

collateral proceedings because “in [these] cases . . . state

collateral review is the first place a prisoner can present a

challenge to his conviction.” Id., at 755. As Coleman

noted, this makes the initial-review collateral proceeding a

prisoner’s “one and only appeal” as to an ineffective­

assistance claim, id., at 756 (emphasis deleted; internal

quotation marks omitted), and this may justify an excep­

tion to the constitutional rule that there is no right to

counsel in collateral proceedings. See id., at 755; Douglas

v. California, 372 U. S. 353, 357 (1963) (holding States

must appoint counsel on a prisoner’s first appeal).

This is not the case, however, to resolve whether that

exception exists as a constitutional matter. The pre-

cise question here is whether ineffective assistance in an

initial-review collateral proceeding on a claim of ineffective

6 MARTINEZ v. RYAN

Opinion of the Court

assistance at trial may provide cause for a procedural

default in a federal habeas proceeding. To protect prison­

ers with a potentially legitimate claim of ineffective assis­

tance of trial counsel, it is necessary to modify the unqual­

ified statement in Coleman that an attorney’s ignorance

or inadvertence in a postconviction proceeding does not

qualify as cause to excuse a procedural default. This

opinion qualifies Coleman by recognizing a narrow excep­

tion: Inadequate assistance of counsel at initial-review

collateral proceedings may establish cause for a prisoner’s

procedural default of a claim of ineffective assistance at

trial.

A

Federal habeas courts reviewing the constitutionality of

a state prisoner’s conviction and sentence are guided by

rules designed to ensure that state-court judgments are

accorded the finality and respect necessary to preserve the

integrity of legal proceedings within our system of federal­

ism. These rules include the doctrine of procedural de­

fault, under which a federal court will not review the

merits of claims, including constitutional claims, that a

state court declined to hear because the prisoner failed to

abide by a state procedural rule. See, e.g., Coleman, su-

pra, at 747–748; Sykes, supra, at 84–85. A state court’s

invocation of a procedural rule to deny a prisoner’s claims

precludes federal review of the claims if, among other

requisites, the state procedural rule is a nonfederal

ground adequate to support the judgment and the rule is

firmly established and consistently followed. See, e.g.,

Walker v. Martin, 562 U. S. ___, ___ (2011) (slip op., at 7–

8); Beard v. Kindler, 558 U. S. ___, ___ (2009) (slip op., at

7). The doctrine barring procedurally defaulted claims

from being heard is not without exceptions. A prisoner

may obtain federal review of a defaulted claim by showing

cause for the default and prejudice from a violation of

Cite as: 566 U. S. ____ (2012) 7

Opinion of the Court

federal law. See Coleman, 501 U. S., at 750. There is no

dispute that Arizona’s procedural bar on successive peti­

tions is an independent and adequate state ground. Thus,

a federal court can hear Martinez’s ineffective-assistance

claim only if he can establish cause to excuse the proce­

dural default.

Coleman held that “[n]egligence on the part of a prison­

er’s postconviction attorney does not qualify as ‘cause.’ ”

Maples v. Thomas, 565 U. S ___, ___ (2011) (slip op., at

12). Coleman reasoned that “because the attorney is the

prisoner’s agent . . . under ‘well-settled principles of agen­

cy law,’ the principal bears the risk of negligent conduct on

the part of his agent.” Maples, supra, at ___ (slip op., at

12).

Coleman, however, did not present the occasion to apply

this principle to determine whether attorney errors in

initial-review collateral proceedings may qualify as cause

for a procedural default. The alleged failure of counsel in

Coleman was on appeal from an initial-review collateral

proceeding, and in that proceeding the prisoner’s claims

had been addressed by the state habeas trial court. See

501 U. S., at 755.

As Coleman recognized, this marks a key difference

between initial-review collateral proceedings and other

kinds of collateral proceedings. When an attorney errs in

initial-review collateral proceedings, it is likely that no

state court at any level will hear the prisoner’s claim.

This Court on direct review of the state proceeding could

not consider or adjudicate the claim. See, e.g., Fox Film

Corp. v. Muller, 296 U. S. 207 (1935); Murdock v. Mem-

phis, 20 Wall. 590 (1875); cf. Coleman, supra, at 730–731.

And if counsel’s errors in an initial-review collateral pro­

ceeding do not establish cause to excuse the procedural

default in a federal habeas proceeding, no court will re­

view the prisoner’s claims.

The same is not true when counsel errs in other kinds of

8 MARTINEZ v. RYAN

Opinion of the Court

postconviction proceedings. While counsel’s errors in

these proceedings preclude any further review of the

prisoner’s claim, the claim will have been addressed by

one court, whether it be the trial court, the appellate court

on direct review, or the trial court in an initial-review

collateral proceeding. See, e.g., Coleman, supra, at 756.

Where, as here, the initial-review collateral proceeding

is the first designated proceeding for a prisoner to raise a

claim of ineffective assistance at trial, the collateral pro­

ceeding is in many ways the equivalent of a prisoner’s

direct appeal as to the ineffective-assistance claim. This

is because the state habeas court “looks to the merits of

the clai[m]” of ineffective assistance, no other court has

addressed the claim, and “defendants pursuing first-tier

review . . . are generally ill equipped to represent them­

selves” because they do not have a brief from counsel or an

opinion of the court addressing their claim of error. Hal-

bert v. Michigan, 545 U. S. 605, 617 (2005); see Douglas,

372 U. S., at 357–358.

As Coleman recognized, an attorney’s errors during an

appeal on direct review may provide cause to excuse a

procedural default; for if the attorney appointed by the

State to pursue the direct appeal is ineffective, the prison­

er has been denied fair process and the opportunity to

comply with the State’s procedures and obtain an adjudi­

cation on the merits of his claims. See 501 U. S., at 754;

Evitts v. Lucey, 469 U. S. 387, 396 (1985); Douglas, supra,

at 357–358. Without the help of an adequate attorney,

a prisoner will have similar difficulties vindicating a

substantial ineffective-assistance-of-trial-counsel claim.

Claims of ineffective assistance at trial often require

investigative work and an understanding of trial strategy.

When the issue cannot be raised on direct review, more-

over, a prisoner asserting an ineffective-assistance-of-trial­

counsel claim in an initial-review collateral proceeding

cannot rely on a court opinion or the prior work of an

Cite as: 566 U. S. ____ (2012) 9

Opinion of the Court

attorney addressing that claim. Halbert, 545 U. S., at 619.

To present a claim of ineffective assistance at trial in

accordance with the State’s procedures, then, a prisoner

likely needs an effective attorney.

The same would be true if the State did not appoint an

attorney to assist the prisoner in the initial-review collat­

eral proceeding. The prisoner, unlearned in the law, may

not comply with the State’s procedural rules or may mis­

apprehend the substantive details of federal constitutional

law. Cf., e.g., id., at 620–621 (describing the educational

background of the prison population). While confined to

prison, the prisoner is in no position to develop the eviden­

tiary basis for a claim of ineffective assistance, which often

turns on evidence outside the trial record.

A prisoner’s inability to present a claim of trial error is

of particular concern when the claim is one of ineffective

assistance of counsel. The right to the effective assistance

of counsel at trial is a bedrock principle in our justice

system. It is deemed as an “obvious truth” the idea that

“any person haled into court, who is too poor to hire a

lawyer, cannot be assured a fair trial unless counsel is

provided for him.” Gideon v. Wainwright, 372 U. S. 335,

344 (1963). Indeed, the right to counsel is the foundation

for our adversary system. Defense counsel tests the pros­

ecution’s case to ensure that the proceedings serve the

function of adjudicating guilt or innocence, while protect­

ing the rights of the person charged. See, e.g., Powell v.

Alabama, 287 U. S. 45, 68–69 (1932) (“[The defendant]

requires the guiding hand of counsel at every step in the

proceedings against him. Without it, though he be not

guilty, he faces the danger of conviction because he does

not know how to establish his innocence”). Effective trial

counsel preserves claims to be considered on appeal, see,

e.g., Fed. Rule Crim. Proc. 52(b), and in federal habeas

proceedings, Edwards v. Carpenter, 529 U. S. 446 (2000).

This is not to imply the State acted with any impropri­

10 MARTINEZ v. RYAN

Opinion of the Court

ety by reserving the claim of ineffective assistance for a

collateral proceeding. See Massaro v. United States, 538

U. S. 500, 505 (2003). Ineffective-assistance claims often

depend on evidence outside the trial record. Direct ap­

peals, without evidentiary hearings, may not be as effec­

tive as other proceedings for developing the factual basis

for the claim. Ibid. Abbreviated deadlines to expand the

record on direct appeal may not allow adequate time for

an attorney to investigate the ineffective-assistance claim.

See Primus, Structural Reform in Criminal Defense, 92

Cornell L. Rev. 679, 689, and n. 57 (2004) (most rules give

between 5 and 30 days from the time of conviction to file a

request to expand the record on appeal). Thus, there are

sound reasons for deferring consideration of ineffective­

assistance-of-trial-counsel claims until the collateral­

review stage, but this decision is not without consequences

for the State’s ability to assert a procedural default in

later proceedings. By deliberately choosing to move trial­

ineffectiveness claims outside of the direct-appeal process,

where counsel is constitutionally guaranteed, the State

significantly diminishes prisoners’ ability to file such

claims. It is within the context of this state procedural

framework that counsel’s ineffectiveness in an initial­

review collateral proceeding qualifies as cause for a proce­

dural default.

The rules for when a prisoner may establish cause to

excuse a procedural default are elaborated in the exercise

of the Court’s discretion. McCleskey v. Zant, 499 U. S.

467, 490 (1991); see also Coleman, supra, at 730–731;

Sykes, 433 U. S., at 83; Reed v. Ross, 468 U. S. 1, 9 (1984);

Fay v. Noia, 372 U. S. 391, 430 (1963), overruled in part

by Sykes, supra. These rules reflect an equitable judg­

ment that only where a prisoner is impeded or obstructed

in complying with the State’s established procedures will a

federal habeas court excuse the prisoner from the usual

sanction of default. See, e.g., Strickler v. Greene, 527 U. S.

Cite as: 566 U. S. ____ (2012) 11

Opinion of the Court

263, 289 (1999); Reed, supra, at 16. 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 consid­

eration 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 inef­

fective 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).

Most jurisdictions have in place procedures to ensure

counsel is appointed for substantial ineffective-assistance

claims. Some States, including Arizona, appoint counsel

in every first collateral proceeding. See, e.g., Alaska Stat.

18.85.100(c) (2010); Ariz. Rule Crim. Proc. 32.4(c)(2)

(2011); Conn. Gen. Stat. §51–296(a) (2011); Me. Rules

Crim. Proc. 69, 70(c) (2010); N. C. Gen. Stat. Ann. §7A–

451(a)(2) (2009); N. J. Ct. Rule 3:22–6(b) (2012); R. I. Gen.

Laws §10–9.1–5 (Lexis 1997); Tenn. Code Ann. §8–14–205

(2011). Some States appoint counsel if the claims require

12 MARTINEZ v. RYAN

Opinion of the Court

an evidentiary hearing, as claims of ineffective assistance

often do. See, e.g., Ky. Rule Crim. Proc. 11.42(5) (2011);

La. Code Crim. Proc. Ann., Art. 930.7(C) (West 2008);

Mich. Rule Crim. Proc. 6.505(A) (2011); S. C. Rule Civ.

Proc. 71.1(d) (2011). Other States appoint counsel if the

claims have some merit to them or the state habeas trial

court deems the record worthy of further development.

See, e.g., Ark. Rule Crim. Proc. 37.3(b) (2011); Colo. Rule

Crim. Proc. 35(b) (2011); Del. Super. Ct. Rule Crim. Proc.

61(e)(1) (2011); Indiana Rule Post-Conviction Remedies

Proc. 1, §9(a) (rev. 2011); Kan. Stat. Ann. §22–4506 (2007);

N. M. Dist. Ct. Rule Crim. Proc. 5–802 (2011); Hust v.

State, 147 Idaho 682, 683–684, 214 P. 3d 668, 669–670

(2009); Hardin v. Arkansas, 350 Ark. 299, 301, 86 S. W. 3d

384, 385 (2007) (per curiam); Jensen v. State, 2004 ND

200, ¶13, 688 N. W. 2d 374, 378; Wu v. United States, 798

A. 2d 1083, 1089 (D. C. 2002); Kostal v. People, 167 Colo.

317, 447 P. 2d 536 (1968). It is likely that most of the

attorneys appointed by the courts are qualified to per-

form, and do perform, according to prevailing professional

norms; and, where that is so, the States may enforce a

procedural default in federal habeas proceedings.

B

This limited qualification to Coleman does not implicate

the usual concerns with upsetting reliance interests pro­

tected by stare decisis principles. Cf., e.g., Montejo v.

Louisiana, 556 U. S. 778, 792–793 (2009). Coleman held

that an attorney’s negligence in a postconviction proceed­

ing does not establish cause, and this remains true except

as to initial-review collateral proceedings for claims of

ineffective assistance of counsel at trial. Coleman itself

did not involve an occasion when an attorney erred in an

initial-review collateral proceeding with respect to a claim

of ineffective trial counsel; and in the 20 years since Cole-

man was decided, we have not held Coleman applies in

Cite as: 566 U. S. ____ (2012) 13

Opinion of the Court

circumstances like this one.

The holding here ought not to put a significant strain on

state resources. When faced with the question whether

there is cause for an apparent default, a State may answer

that the ineffective-assistance-of-trial-counsel claim is in­

substantial, i.e., it does not have any merit or that it is

wholly without factual support, or that the attorney in the

initial-review collateral proceeding did not perform below

constitutional standards.

This is but one of the differences between a constitu­

tional ruling and the equitable ruling of this case. A

constitutional ruling would provide defendants a free­

standing constitutional claim to raise; it would require the

appointment of counsel in initial-review collateral proceed­

ings; it would impose the same system of appointing coun­

sel in every State; and it would require a reversal in all

state collateral cases on direct review from state courts if

the States’ system of appointing counsel did not conform to

the constitutional rule. An equitable ruling, by contrast,

permits States a variety of systems for appointing counsel

in initial-review collateral proceedings. And it permits a

State to elect between appointing counsel in initial-review

collateral proceedings or not asserting a procedural de­

fault and raising a defense on the merits in federal habeas

proceedings. In addition, state collateral cases on direct

review from state courts are unaffected by the ruling in

this case.

The rule of Coleman governs in all but the limited cir­

cumstances recognized here. The holding in this case does

not concern attorney errors in other kinds of proceedings,

including appeals from initial-review collateral proceed­

ings, second or successive collateral proceedings, and

petitions for discretionary review in a State’s appellate

courts. See 501 U. S., at 754; Carrier, 477 U. S., at 488. It

does not extend to attorney errors in any proceeding be­

yond the first occasion the State allows a prisoner to raise

14 MARTINEZ v. RYAN

Opinion of the Court

a claim of ineffective assistance at trial, even though that

initial-review collateral proceeding may be deficient for

other reasons.

In addition, the limited nature of the qualification to

Coleman adopted here reflects the importance of the right

to the effective assistance of trial counsel and Arizona’s

decision to bar defendants from raising ineffective­

assistance claims on direct appeal. Our holding here

addresses only the constitutional claims presented in this

case, where the State barred the defendant from raising

the claims on direct appeal.

Arizona contends that the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254,

bars Martinez from asserting attorney error as cause for

a procedural default. AEDPA refers to attorney error in

collateral proceedings, but it does not speak to the ques­

tion presented in this case. Section 2254(i) provides that

“the ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings

shall not be a ground for relief.” “Cause,” however, is not

synonymous with “a ground for relief.” A finding of cause

and prejudice does not entitle the prisoner to habeas relief.

It merely allows a federal court to consider the merits of

a claim that otherwise would have been procedurally de­

faulted. In this case, for example, Martinez’s “ground for

relief ” is his ineffective-assistance-of-trial-counsel claim, a

claim that AEDPA does not bar. Martinez relies on the

ineffectiveness of his postconviction attorney to excuse his

failure to comply with Arizona’s procedural rules, not as

an independent basis for overturning his conviction. In

short, while §2254(i) precludes Martinez from relying on

the ineffectiveness of his postconviction attorney as a

“ground for relief,” it does not stop Martinez from using it

to establish “cause.” Holland v. Florida, 560 U. S. ___, ___

(2010) (slip op., at 18).

Cite as: 566 U. S. ____ (2012) 15

Opinion of the Court

III

Where, under state law, claims of ineffective assistance

of trial counsel must be raised in an initial-review collat­

eral proceeding, a procedural default will not bar a federal

habeas court from hearing a substantial claim of ineffec­

tive assistance at trial if, in the initial-review collateral

proceeding, there was no counsel or counsel in that pro­

ceeding 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, the

attorney’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 deter­

mine whether Martinez’s attorney in his first collateral

proceeding was ineffective or whether his claim of ineffec­

tive 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.

* * *

The judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

Cite as: 566 U. S. ____ (2012) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1001

_________________

LUIS MARIANO MARTINEZ, PETITIONER v.

CHARLES L. RYAN, DIRECTOR, ARIZONA

DEPARTMENT OF CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 20, 2012]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

dissenting.

I

A

Let me get this straight: Out of concern for the values of

federalism; to preserve the ability of our States to provide

prompt justice; and in light of our longstanding juris-

prudence holding that there is no constitutional right to

counsel in state collateral review; the Court, in what it

portrays as an admirable exercise of judicial restraint,

abstains from holding that there is a constitutional right

to counsel in initial-review state habeas. After all, that

would have meant, in a case such as the one before us,

that failing to provide assistance of counsel, or providing

assistance of counsel that falls below the Strickland

standard, would constitute cause for excusing procedural

default. See Strickland v. Washington, 466 U. S. 668

(1984). Instead of taking that radical step, the Court

holds that, for equitable reasons, in a case such as the one

before us, failing to provide assistance of counsel, or

providing assistance of counsel that falls below the Strick-

land standard, constitutes cause for excusing procedural

default. The result, of course, is precisely the same.

2 MARTINEZ v. RYAN

SCALIA, J., dissenting

Ah, but perhaps the explanation of why the Court’s

action today amounts to praiseworthy self-restraint is this:

It pronounces this excuse from the usual rule of proce-

dural default only in initial-review state habeas raising an

ineffective-assistance-of-trial-counsel claim. But it could

have limited its invention of a new constitutional right to

collateral-review counsel in precisely the same fashion—

and with precisely the same consequences. Moreover, no

one really believes that the newly announced “equitable”

rule will remain limited to ineffective-assistance-of-trial-

counsel cases. There 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: claims of “newly discov-

ered” prosecutorial misconduct, for example, see Brady v.

Maryland, 373 U. S. 83 (1963), claims based on “newly

discovered” exculpatory evidence or “newly discovered”

impeachment of prosecutorial witnesses, and claims as-

serting ineffective assistance of appellate counsel. The

Court’s soothing assertion, ante, at 14, that its holding

“addresses only the constitutional claims presented in this

case,” insults the reader’s intelligence.1

——————

1 The Court also seeks to restrict its holding to cases in which the

State has “deliberately cho[sen]” to move the asserted claim “outside of

the direct-appeal process,” ante, at 10. That line lacks any principled

basis, and will not last. Is there any relevant difference between cases

in which the State says that certain claims can only be brought on

collateral review and cases in which those claims by their nature can

only be brought on collateral review, since they do not manifest them-

selves until the appellate process is complete? Our cases establish that

to constitute cause for failure to raise an issue on direct review, the

excuse must be “an objective factor external to the defense.” See infra,

at 7. That the factual basis for a claim was not available until the

collateral-review stage is no less such a factor than a State’s requiring

that a claim be brought on collateral review. See Murray v. Carrier,

477 U. S. 478, 488 (1986). The Court’s asserted limitation makes sense

only if the opinion means that a State has “deliberately chos[en]” to

move newly-arisen claims “outside of the direct-appeal process” if it

Cite as: 566 U. S. ____ (2012) 3

SCALIA, J., dissenting

Moreover, even if today’s holding could (against all

logic) be restricted to ineffective-assistance-of-trial-counsel

claims, it would have essentially the same practical conse-

quences as a holding that collateral-review counsel is

constitutionally required. Despite the Court’s suggestion

to the contrary, see ante, at 13, the rule it adopts calls into

question the common state practice of not appointing

counsel in all first collateral proceedings, see ante, at 11–

12. It does not, to be sure, call into question the lawful-

ness of that practice; only its sanity. For if the prisoner

goes through state collateral proceedings without counsel,

and fails to raise an ineffective-assistance-of-trial-counsel

claim which is, because of that failure, defaulted, the

default will not preclude federal habeas review of the

merits of that claim. And since ineffective assistance of

trial counsel is a monotonously standard claim on federal

habeas (has a duly convicted defendant ever been effective-

ly represented?), whoever advises the State would himself

be guilty of ineffective assistance if he did not counsel

the appointment of state-collateral-review counsel in all

cases—lest the failure to raise that claim in the state pro-

ceedings be excused and the State be propelled into federal

habeas review of the adequacy of trial-court representa-

tion that occurred many years ago.2 Which is to say that

——————

fails to reopen the direct-appeal process in order to entertain such

claims. Such a radical change in what we require of the States surely

ought to be prescribed by language clearer than what today’s opinion

contains.

2 The Court says that to establish cause a prisoner must demonstrate

that the ineffective-assistance-of-trial-counsel claim is “substantial,”

which apparently means the claim has at least some merit. See ante, at

11. The Court does not explain where this substantiality standard

comes from, and how it differs from the normal rule that a prisoner

must demonstrate actual prejudice to avoid the enforcement of a

procedural default, see Coleman v. Thompson, 501 U. S. 722, 750

(1991). But whatever the standard, examination of the adequacy of

4 MARTINEZ v. RYAN

SCALIA, J., dissenting

the Court’s pretended avoidance of requiring States to ap-

point collateral-review counsel is a sham.3

Of course even the appointment of state-collateral-

review counsel will not guarantee that the State’s criminal

proceeding can be concluded without years-long federal

retrial. Appointment of counsel may, as I have said, avoid

federal review of the adequacy of representation that

occurred years ago, at the original trial. But since, under

today’s opinion, the condition for exclusion of federal

habeas is the very same condition that would apply if

appointment of state-collateral-review counsel were con-

stitutionally required, it will remain to be determined in

federal habeas review whether the state-appointed counsel

was effective. Thus, as a consequence of today’s decision

the States will always be forced to litigate in federal habe-

as, for all defaulted ineffective-assistance-of-trial-counsel

claims (and who knows what other claims), either (1) the

validity of the defaulted claim (where collateral-review

counsel was not appointed), or (2) the effectiveness of

collateral-review counsel (where collateral-review counsel

was appointed). The Court notes that many States al-

ready provide for the appointment of counsel in first col-

——————

years-ago representation has been substituted for summary dismissal

by reason of procedural default.

3 The Court also claims, ante, at 13, that its “equitable” ruling, unlike

a constitutional ruling, will not require “a reversal in all state collateral

cases on direct review from state courts” where counsel has not been

appointed. Surely the Court does not mean to suggest that an un-

constitutional failure to appoint counsel on collateral review, like an

unconstitutional failure to appoint counsel at trial, would require the

entire conviction to be set aside. That is inconceivable. So either one of

two things would happen: Either the reviewing state court would be

able to inquire into prejudice (which is an improvement over having the

federal habeas court make that inquiry, as the Court’s “equitable”

solution requires); or else the appellate state court will remand for a

collateral proceeding with counsel (which is, as we have said, just what

the Court’s “equitable” ruling effectively requires anyway). So the

Court’s “equitable” ruling is no boon to the States.

Cite as: 566 U. S. ____ (2012) 5

SCALIA, J., dissenting

lateral challenges—as though this proves that what the

Court forces the States to do today is eminently reasona-

ble. But what the Court fails to point out is that current-

ly, when state-appointed counsel does not raise an ineffec-

tive-assistance-of-trial-counsel claim, that is the end of the

matter: The issue has been procedurally defaulted. By

virtue of today’s opinion, however, all those cases can (and

where capital punishment is at issue assuredly will) pro-

ceed to federal habeas on the issue of whether state-

appointed counsel was ineffective in failing to raise the

ineffective-assistance-of-trial-counsel issue. That is the

meaning of the Court’s (supposedly comforting) statement:

“It is likely that most of the attorneys appointed by

the courts are qualified to perform, and do perform,

according to prevailing professional norms; and, where

that is so, the States may enforce a procedural default

in federal habeas proceedings.” Ante, at 12 (emphasis

added).

To be more precise, the Court should have said “where

that is so, and where federal habeas courts have finally

rejected claims that it is not so, the States may enforce a

procedural default in federal habeas proceedings.”

I cannot possibly imagine the basis for the Court’s confi-

dence, ante, at 12–13, that all this will not put a signifi-

cant strain on state resources. The principal escape route

from federal habeas—existence of an “adequate and in-

dependent state ground”—has been closed.4 Whether

——————

4 See N. King, F. Cheesman, & B. Ostrom, Final Technical Report:

Habeas Litigation in U. S. District Courts 45–49 (2007) (documenting

the percentage of habeas petitions that included claims dismissed for

various procedural reasons); Administrative Office of the United States

Courts, Habeas Corpus Petitions Disposed of Procedurally During the

12-Month Period Ending September 30, 2011 (reporting that for ap-

peals in noncapital state-prisoner habeas cases, procedural default

accounted for the largest percentage of procedural dispositions, with

the exception of the denial of a certificate of appealability) (available in

6 MARTINEZ v. RYAN

SCALIA, J., dissenting

counsel appointed for state collateral review raises the

ineffective-assistance-of-trial-counsel claim or not, federal

habeas review will proceed. In practical effect, that may

not make much difference in noncapital cases (except for

the squandering of state taxpayers’ money): The defendant

will stay in prison, continuing to serve his sentence, while

federal habeas review grinds on. But in capital cases, it will

effectively reduce the sentence, giving the defendant as

many more years to live, beyond the lives of the innocent

victims whose life he snuffed out, as the process of federal

habeas may consume. I guarantee that an assertion of

ineffective assistance of trial counsel will be made in all

capital cases from this date on, causing (because of today’s

holding) execution of the sentence to be deferred until

either that claim, or the claim that appointed counsel was

ineffective in failing to make that claim, has worked its

way through the federal system.

B

The Court would have us believe that today’s holding

is no more than a “limited qualification” to Coleman v.

Thompson, 501 U. S. 722 (1991). Ante, at 12. It is much

more than that: a repudiation of the longstanding princi-

ple governing procedural default, which Coleman and

other cases consistently applied. Coleman itself involved a

habeas petitioner’s contention that his attorney’s failure to

file a timely notice of appeal in his state habeas proceed-

ing, which resulted in procedural default of the claims

raised in that proceeding, was cause to excuse that default

in federal habeas. 501 U. S., at 752. The petitioner in

that case contended that whether a violation of his consti-

tutional right to effective counsel had occurred was of no

consequence, so long as the attorney’s conduct fell short of

the effectiveness standard set forth in Strickland. See 501

——————

Clerk of Court’s case file).

Cite as: 566 U. S. ____ (2012) 7

SCALIA, J., dissenting

U. S., at 753. Whereas Coleman flatly repudiated that

claim as being inconsistent with our precedent, see ibid.,

today’s majority wholeheartedly embraces it, ante, at 11.

Rejection of the argument in Coleman was compelled by

our jurisprudence pertaining to cause for excusing proce-

dural default, and in particular Murray v. Carrier, 477

U. S. 478 (1986). See Coleman, supra, at 752–753. Car-

rier involved the failure of a defendant’s attorney to raise a

claim on direct appeal. 477 U. S., at 482. This failure did

not constitute cause, we explained, because it was not an

“objective factor external to the defense.” Id., at 488 (em-

phasis added). This external-factor requirement reflects

the judgment that States should not be forced to undergo

federal habeas review of a defaulted claim unless a factor

not attributable to the prisoner obstructed his compliance

with state procedures. See id., at 487–488.

Although this externality requirement has been the

North Star of our excuse-for-cause jurisprudence, today’s

opinion does not whisper its name—no doubt because it is

impossible to say that Martinez’s procedural default was

caused by a factor external to his defense. Coleman and

Carrier set forth in clear terms when it is that attorney

error constitutes an external factor: Attorney error by it-

self does not, because when an attorney acts (or fails to

act) in furtherance of the litigation, he is acting as the

petitioner’s agent. Coleman, supra, at 753; Carrier, supra,

at 492. Any other rule would be inconsistent with our

system of representative litigation, under which “each

party is deemed bound by the acts of his lawyer-agent.”

Irwin v. Department of Veterans Affairs, 498 U. S. 89, 92

(1990) (internal quotation marks omitted). But when

attorney error amounts to constitutionally ineffective

assistance of counsel, that error is imputed to the State

(for the State has failed to comply with the constitutional

requirement to provide effective counsel), rendering the

error external to the petitioner. Coleman, supra, at 754;

8 MARTINEZ v. RYAN

SCALIA, J., dissenting

Carrier, supra, at 488. Accordingly, as Martinez himself

appears to recognize, see Brief for Petitioner 22, our cases

require that absent a determination that Arizona violated

the Constitution by failing to provide effective counsel,

attorney error cannot provide cause to excuse his proce-

dural default. Rather than apply that rule here, the Court

adopts the very approach Coleman explicitly addressed

and rejected.

The Court essentially disclaims any need to give full

consideration to the principle of stare decisis because

Coleman did not involve an initial-review collateral pro-

ceeding for a claim of ineffective assistance of trial coun-

sel. See ante, at 12. That is rather like saying that Mar-

bury v. Madison, 1 Cranch 137 (1803), does not establish

our authority to review the constitutionality of a new

federal statute because it involved a different enactment.

Just as the reasoning of Marbury was categorical, so was

the reasoning of Coleman and Carrier: Attorney error is

not an external factor constituting cause for excusing

default unless the State has a constitutional obligation to

provide effective counsel. Had the majority seriously

considered the relevant stare decisis factors, see, e.g.,

Montejo v. Louisiana, 556 U. S. 778, 792–793 (2009), it

would have had difficulty justifying today’s decision. Nor

can it escape the demands of stare decisis by saying that

our rules regarding the excuse of procedural default reflect

an “equitable judgment” that is “elaborated in the exercise

of the Court’s discretion.” Ante, at 10. Equity is not law-

lessness, and discretion is not license to cast aside estab-

lished jurisprudence reaffirmed this very Term. See Ma-

ples v. Thomas, 565 U. S. ___, ___ (2012) (slip op., at 12)

(“Negligence on the part of a prisoner’s postconviction

attorney does not qualify as ‘cause’ ” (quoting Coleman,

supra, at 753)). “ ‘[C]ourts of equity must be governed by

rules and precedents no less than courts of law.’ ” Lonchar

v. Thomas, 517 U. S. 314, 323 (1996) (quoting Missouri

Cite as: 566 U. S. ____ (2012) 9

SCALIA, J., dissenting

v. Jenkins, 515 U. S. 70, 127 (1995) (THOMAS, J.,

concurring)).

Noticeably absent from the Court’s equitable analysis,

moreover, is any consideration of the very reason for a

procedural-default rule: the comity and respect that fed-

eral courts must accord state-court judgments. See

Edwards v. Carpenter, 529 U. S. 446, 451 (2000). The

procedural-default doctrine reflects the understanding that

federal review of defaulted claims may “circumvent the

jurisdictional limits of direct review and ‘undermine the

State’s interest in enforcing its laws.’ ” Lee v. Kemna, 534

U. S. 362, 388 (2002) (KENNEDY, J., dissenting) (quoting

Coleman, supra, at 731). Unlike today’s decision, Carrier

and Coleman took account of the significant costs federal

habeas review imposes on States, including the “reduction

in the finality of litigation and the frustration of ‘both the

States’ sovereign power to punish offenders and their

good-faith attempts to honor constitutional rights.’ ” Car-

rier, supra, at 487 (quoting Engle v. Isaac, 456 U. S. 107,

128 (1982)). Criminal conviction ought to be final before

society has forgotten the crime that justifies it. When a

case arrives at federal habeas, the state conviction and

sentence at issue (never mind the underlying crime) are

already a dim memory, on average more than 6 years old

(7 years for capital cases).5 I would adhere to the prece-

dents that prevent a bad situation from becoming worse.

II

We granted certiorari on, and the parties addressed

their arguments to, the following question:

“Whether a defendant in a state criminal case who is

——————

5 See King, Cheesman, & Ostrom, Final Technical Report, at 21–22

(reporting the average interval between state judgment and federal

habeas filing for a sample of federal habeas cases filed in the early-to-

mid 2000’s).

10 MARTINEZ v. RYAN

SCALIA, J., dissenting

prohibited by state law from raising on direct appeal

any claim of ineffective assistance of trial counsel, but

who has a state-law right to raise such a claim in a

first post-conviction proceeding, has a federal consti-

tutional right to effective assistance of first post-

conviction counsel specifically with respect to his

ineffective-assistance-of-trial-counsel claim.” Pet. for

Cert. i.

While the Court’s decision not to answer the question did

not avoid the costs a constitutional holding would have

imposed on States, it did avoid the Court’s need to con-

front the established rule that there is no right to counsel

in collateral proceedings. To avoid his procedural default,

Martinez advocates in favor of an exception to this rule

where the prisoner seeks the right to counsel in an initial-

review collateral proceeding—an argument we have previ-

ously declined to address. See Coleman, 501 U. S., at 755.

The argument is quite clearly foreclosed by our prece-

dent. In Pennsylvania v. Finley, 481 U. S. 551 (1987), and

Murray v. Giarratano, 492 U. S. 1 (1989), we stated un-

equivocally that prisoners do not “have a constitutional

right to counsel when mounting collateral attacks upon

their convictions.” Finley, supra, at 555. See also Giar-

ratano, 492 U. S., at 10 (plurality opinion) (“[T]he rule

of Pennsylvania v. Finley should apply no differently

in capital cases than in noncapital cases”); id., at 14

(KENNEDY, J., concurring in judgment) (indicating that

the Constitution does not categorically require States to

provide counsel to death-row inmates seeking state habeas

review). Though Finley may have involved only claims

that could have been raised on direct review, see 481 U. S.,

at 553; Giarratano, supra, at 24 (Stevens, J., dissenting),

the Court was no doubt aware that States often limit “the

collateral review process [to] issues that have not previ-

ously been litigated or argued on the direct appeal.” Brief

Cite as: 566 U. S. ____ (2012) 11

SCALIA, J., dissenting

for Respondent in Finley, O. T. 1986, No. 85–2099, p. 11,

n. 5. And Giarratano, which involved a class action filed

under 42 U. S. C. §1983, addressed the general assertion

that the Constitution requires the appointment of counsel

for collateral attacks on capital convictions. See 492 U. S.,

at 3–4 (plurality opinion). The Court rejected that asser-

tion without qualification. The dissenting opinion, more-

over, made the precise argument Martinez now asserts:

under state law “some claims [including ineffective assis-

tance of trial counsel] ordinarily heard on direct review

will be relegated to postconviction proceedings.” Id., at 24

(Stevens, J., dissenting). See also Brief for Respondents in

Giarratano, O. T. 1988, No. 88–411, p. 29, n. 8 (“In [Vir-

ginia capital habeas] proceedings, Death Row inmates

seek to assert claims that have not been, and could not

have been addressed on direct appeal . . . ”). Thus, in

announcing a categorical rule in Finley, see Giarratano,

supra, at 12 (plurality opinion), and then reaffirming it in

Giarratano, the Court knew full well that a collateral

proceeding may present the first opportunity for a prison-

er to raise a constitutional claim. I would follow that rule

in this case and reject Martinez’s argument that there is a

constitutional right to counsel in initial-review collateral

proceedings.

* * *

Far from avoiding the consequences a constitutional

holding would have imposed on the States, today’s holding

as a practical matter requires States to appoint counsel in

initial-review collateral proceedings—and, to boot, elimi-

nates the pre-existing assurance of escaping federal-

habeas review for claims that appointed counsel fails to

present. Despite the Court’s protestations to the contrary,

the decision is a radical alteration of our habeas jurispru-

dence that will impose considerable economic costs on the

States and further impair their ability to provide justice in

12 MARTINEZ v. RYAN

SCALIA, J., dissenting

a timely fashion. The balance it strikes between the final-

ity of criminal judgments and the need to provide for

review of defaulted claims of ineffective assistance of trial

counsel grossly underestimates both the frequency of such

claims in federal habeas, and the incentives to argue

(since it is a free pass to federal habeas) that appointed

counsel was ineffective in failing to raise such claims. The

balance might have been close (though it would disregard

our established jurisprudence) if the Court merely held

that uncounseled failure to raise ineffective assistance of

trial counsel would not constitute default. But in adding

to that the rule that counseled failure to raise it may also

provide an excuse, the Court creates a monstrosity. For

these reasons, I respectfully dissent.