Amicus Curiae Brief — David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry, Petitioner v. David Martinez Ramirez

No. 20-1009

IN THE

Supreme Court of the United States

DAVID SHINN, ET AL.,

Petitioners,

v.

DAVID MARTIN RAMIREZ AND BARRY LEE JONES,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF FORMER STATE SUPREME

COURT JUSTICES AND FORMER FEDERAL

JUDGES AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

JEFFREY R. JOHNSON

Counsel of Record

AMELIA A. DEGORY

ELIZABETH S. FASSIH

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

jeffreyjohnson@jonesday.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST OF

AMICI CURIAE .................................................. 1

INTRODUCTION AND SUMMARY OF

THE ARGUMENT .............................................. 4

ARGUMENT ............................................................... 7

I.

II.

CRIMINAL DEFENDANTS MUST HAVE

ONE FULL AND FAIR OPPORTUNITY

TO LITIGATE THEIR CLAIMS ........................ 7

A.

Due Process Requires One Full And

Fair Opportunity To Be Heard .................. 7

B.

AEDPA Honors State Primacy

While Giving Defendants A Full

Opportunity ................................................ 9

C.

Martinez Protects This Opportunity

For Ineffective-Assistance Claims ........... 13

ARIZONA’S APPROACH HARMS

FEDERAL AND STATE JUDGES .................. 16

A.

Federal Judges Should Not Have

To Ignore Compelling Evidence

Developed During A Martinez

Hearing ..................................................... 16

B.

Martinez Protects State Judges’

Role As The Primary Bulwark

Against Error ............................................ 23

ii

TABLE OF CONTENTS

(continued)

Page

C.

Martinez Has Not Flooded The

Federal Courts .......................................... 28

CONCLUSION ......................................................... 30

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. McCurry,

449 U.S. 90 (1980) .................................................. 7

Allison v. State,

914 N.W.2d 866 (Iowa 2018) .......................... 24, 27

Armstrong v. Manzo,

380 U.S. 545 (1965) ................................................ 7

Barefoot v. Estelle,

463 U.S. 880 (1983) .............................................. 10

Blonder-Tongue Lab’ys, Inc. v.

Univ. of Ill. Found.,

402 U.S. 313 (1971) ................................................ 8

Boumediene v. Bush,

553 U.S. 723 (2008) ................................................ 8

Bowman v. James,

No. 20-CV-00666-TMC-MHC, 2020

WL 7752650 (D.S.C. Dec. 8, 2020) ....................... 28

Brown v. Brown,

847 F.3d 502 (7th Cir. 2017) ................................ 22

Cullen v. Pinholster,

563 U.S. 170 (2011) .............................................. 11

Davila v. Davis,

137 S. Ct. 2058 (2017) ............................................ 8

Dep’t of Comm. v. New York,

139 S. Ct. 2551 (2019) .......................................... 17

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Dodd v. Lindamood,

No. 11-CV-1090, 2021 WL 3666907

(M.D. Tenn. Aug. 18, 2021) .................................. 28

Eddings v. Oklahoma,

455 U.S. 104 (1982) .............................................. 17

Ex parte Torres,

943 S.W.2d 469 (Tex. Crim.

App. 1997) (en banc)............................................. 16

Fay v. Noia,

372 U.S. 391 (1963) .................................... 9, 10, 11

Fields v. Blades,

No. 95-CV-00422-BLW, 2017 WL

1100897 (D. Idaho Mar. 21, 2017) ....................... 29

Foncette v. Muse,

No. CV-18-00691-PHX-DJH, 2021

WL 1163081 (D. Ariz. Mar. 26, 2021) .................. 28

Gallegos v. Shinn,

No. CV-01-01909-PHX-NVM, 2020

WL 7230698 (D. Ariz. Dec. 8, 2020) .................... 22

Glover v. United States,

531 U.S. 198 (2001) .............................................. 18

Harrington v. Richter,

562 U.S. 86 (2011) .......................................... 13, 14

Harris v. Reed,

894 F.2d 871 (7th Cir. 1990) ................................ 10

Harris v. Wallace,

984 F.3d 641 (8th Cir. 2021) .................... 20, 21, 24

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Henderson v. Sargent,

926 F.2d 706 (8th Cir. 1991) ................................ 10

Herring v. New York,

422 U.S. 853 (1975) .............................................. 13

Holland v. Florida,

560 U.S. 631 (2010) .............................................. 18

I.N.S. v. St. Cyr,

533 U.S. 289 (2001) ................................................ 8

Jenkins v. Lumpkin,

No. SA-20-CA-0553-XR, 2021 WL

1069046 (W.D. Tex. Mar. 18, 2021) ..................... 28

Johnson v. Williams,

568 U.S. 289 (2013) .............................................. 12

Jones v. State,

545 N.W.2d 313 (Iowa 1996) ................................ 24

Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992) ............................................ 11, 15

Kimmelman v. Morrison,

477 U.S. 365 (1986) .............................................. 17

Lafler v. Cooper,

566 U.S. 156 (2012) .............................................. 17

Martinez v. Ryan,

566 U.S. 1 (2012) ...........................................passim

Massaro v. United States,

538 U.S. 500 (2003) .............................................. 16

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................................ 7

McMillan v. Inch,

No. 17CV876-LC-HTC, 2020 WL

8084277 (N.D. Fla. Oct. 8, 2020) ......................... 28

McQuiggin v. Perkins,

569 U.S. 383 (2013) .............................................. 18

Miller v. Pate,

386 U.S. 1 (1967) .............................................. 9, 10

Missouri v. Frye,

566 U.S. 134 (2012) .............................................. 23

Montana v. United States,

440 U.S. 147 (1979) ................................................ 7

Morgan v. White,

140 S. Ct. 2826 (2020) .......................................... 22

Morrissey v. Brewer,

408 U.S. 471 (1972) ................................................ 8

Panetti v. Quarterman,

551 U.S. 930 (2007) ................................................ 8

Penson v. Ohio,

488 U.S. 75 (1988) ................................................ 13

Polk Cnty. v. Dodson,

454 U.S. 312 (1981) .............................................. 13

Schlup v. Delo,

513 U.S. 298 (1995) ........................................ 17, 19

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

State v. Quixal,

70 A.3d 749 (N.J. Super.

Ct. App. Div. 2013) ............................................... 26

Stiegler v. Neven,

No. 14-CV-01274-APG-DJA, 2021

WL 638031 (D. Nev. Feb. 18, 2021) ..................... 28

Stokes v. Stirling,

–– F.4th ––, 2021 WL 3669570

(4th Cir. Aug. 19, 2021) .................................. 21, 24

Strickland v. Washington,

466 U.S. 668 (1984) .................................... 5, 20, 23

Tabler v. Lumpkin,

No. W-10-CA-034-RP, 2021 WL

2383726 (W.D. Tex. June 10, 2021) ..................... 28

Townsend v. Sain,

372 U.S. 293 (1963) .................................... 9, 10, 11

Trevino v. Thaler,

569 U.S. 413 (2013) ...................................... 6, 8, 16

United States v. Ill. Cent. R.R.,

291 U.S. 457 (1934) ................................................ 7

United States v. Stanchich,

550 F.2d 1294 (2d Cir. 1977)................................ 17

Wainwright v. Sykes,

433 U.S. 72 (1977) ................................................ 10

Wanamaker v. Smith,

No. 20-1332, 2021 WL 601543

(E.D. Pa. Feb. 16, 2021) ....................................... 28

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

White v. Warden, Ross Corr. Inst.,

940 F.3d 270 (6th Cir. 2019) ................................ 21

Wiggins v. Smith,

539 U.S. 510 (2003) .............................................. 12

Williams v. Sec’y, Fla. Dep’t of Corr.,

No. 18-CV-985-TJC-JRK, 2021 WL

3666326 (M.D. Fla. Aug. 18, 2021) ...................... 28

Williams v. Taylor,

529 U.S. 362 (2000) .............................................. 11

Woodford v. Visciotti,

537 U.S. 19 (2002) ................................................ 11

STATUTES

28 U.S.C. § 2254 ............................................ 11, 12, 14

Ala. Code § 13A-5-53.1 .............................................. 26

Cal. Penal Code § 1473 .............................................. 27

Idaho Admin. Code r. 61.01.02.................................. 26

Iowa Code § 822.8 ...................................................... 24

La. Admin. Code tit. 22, Pt XV, § 915 ....................... 26

Tex. Code Crim. Proc. Ann. art. 11.073 .................... 27

OTHER AUTHORITIES

American Bar Association, Comments

of the American Bar Association

(Feb. 26, 2018) ...................................................... 25

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Paul M. Bator, Finality in Criminal Law

and Federal Habeas Corpus for State

Prisoners, 76 HARV. L. REV. 441 (1963) ................. 8

Valena E. Beety, Changed Science

Writs and State Habeas Relief,

57 HOUS. L. REV. 483 (2020) ................................ 27

Erwin Chemerinsky, Lessons from Gideon,

122 YALE L.J. 2676 (2013) .................................... 14

William J. Clinton, Statement on Signing

the Antiterrorism and Effective Death

Penalty Act of 1996 (Apr. 24, 1996) ..................... 12

141 Cong. Rec. S7803 (1995) ..................................... 12

141 Cong. Rec. S16892 (1995) ................................... 12

Lee Kovarsky, Structural Change in

State Postconviction Review,

93 NOTRE DAME L. REV. 443 (2017) ..................... 26

Justin F. Marceau, Gideon’s Shadow,

122 YALE L.J. 2482 (2013) .................................... 14

1

IDENTITY AND INTEREST OF AMICI CURIAE

We are former state supreme court justices and former federal judges who submit this brief as amici curiae in support of Respondents, pursuant to Supreme

Court Rule 37.1.1

Charles F. Baird served as an Associate Justice on

the Texas Court of Criminal Appeals from 1990

through 1998.

Michael Burrage served as a U.S. District Judge on

the U.S. District Courts for the Western, Northern,

and Eastern Districts of Oklahoma from 1994 through

2001, and served as the Chief Judge on the U.S. District Court for the Eastern District of Oklahoma from

1996 through 2001.

Robert Cindrich served as a U.S. District Judge on

the U.S. District Court for the Western District of

Pennsylvania from 1994 through 2004.

Sue Bell Cobb served as Chief Justice on the Alabama Supreme Court from 2007 through 2011.

Norman S. Fletcher served as an Associate Justice

on the Supreme Court of Georgia from 1989 until 2001

when he was elevated to Chief Justice. He served in

this position until his retirement in 2005.

Sol Wachtler served as a Judge on the New York

Court of Appeals from 1972 until 1985, when he was

1 No party’s counsel authored this brief in whole or part; no

party or party’s counsel contributed money intended to fund the

preparation or submissions of the brief; and no person other than

amici or counsel contributed money intended to fund the preparation or submission of the brief. Petitioner and Respondents

have filed blanket consents to the filing of amicus curiae briefs

under Supreme Court Rule 37.3.

2

elevated to Chief Judge. He served in this position until 1992.

Penny J. White served as an Associate Justice on

the Tennessee Supreme Court from 1994 through

1996.

Michael A. Wolff served as a Judge on the Missouri

Supreme Court from 1998 to August 2011, and served

as Chief Justice for the term of July 1, 2005, through

June 30, 2007.

As members of the state and federal judiciary, we

devoted a substantial amount of time to safeguarding

the integrity and reliability of criminal prosecutions,

ensuring that criminal proceedings in our respective

courts complied with both state and federal constitutional protections against improper and wrongful conviction. Certain federal claims, notably those asserting

that the prosecution suppressed material evidence or

that trial counsel was constitutionally ineffective, cannot practically be brought either at trial or on direct

appeal because of the difficulties of discovering, or adequately litigating, the facts supporting the claims. Indeed, in some cases, criminal defendants are prohibited from bringing these types of claims before state

postconviction proceedings.

This Court recognized these difficulties when it held

that federal habeas courts could hear substantial

claims of ineffective assistance despite a state defendant’s failure to raise the claim in state postconviction

proceedings. See Martinez v. Ryan, 566 U.S. 1, 13

(2012). Here, however, Arizona argues that federal

courts adjudicating such claims are limited to the (almost always insufficient) record before the state trial

3

court. We are gravely concerned about the implications of Arizona’s position in this case. If accepted, that

position will make federal judges complicit in injustice, forced to ignore evidence of a petitioner’s innocence or of a serious breakdown in the criminal justice

process. We are also deeply concerned that state

judges will never have certainty that defendants convicted in their courtrooms had a full and fair opportunity to raise all of their federal constitutional claims.

4

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

If there is one hallmark feature of our criminal justice system, it is this: Defendants must have at least

one full and fair opportunity to litigate their constitutional claims. The balance in guaranteeing that opportunity may have shifted over the years (from state to

federal and back to state court), but the basic obligation has always remained. There must be some forum

in which a criminal defendant can effectively press his

rights.

In Martinez v. Ryan, this Court put that principle

into practice for the unique set of claims involving ineffective assistance of trial counsel. Unlike claims

about other alleged constitutional violations, these

claims cannot (or cannot effectively) be raised at trial

or on direct appeal. So if a defendant is ever to receive

a full and fair opportunity to challenge his trial counsel’s effectiveness, he must do so in state postconviction court or federal habeas court. But because defendants currently lack a constitutional right to counsel in

postconviction proceedings—even with respect to

claims that could not have been pressed earlier—they

may struggle to raise the arguments and gather the

evidence needed to show trial counsel’s ineffectiveness.

To guarantee these defendants one full and fair opportunity, Martinez held that, where initial-review

collateral proceedings present the first chance for a

prisoner to bring ineffective assistance of trial counsel

claims, the ineffective assistance of postconviction

counsel may establish cause to excuse the prisoner’s

procedural default of that ineffective assistance of trial

5

counsel claim, and a federal court may review the

claim. 566 U.S. 1 (2012). Martinez thus ensured that if

a state prisoner has not had an adequate opportunity

to present his claim to the state court, he will receive

his one fair chance in federal habeas court.

In this way, Martinez encouraged state postconviction courts to hear claims that cannot or should not be

brought on direct review, and it permitted federal

courts to serve as a backstop when no state court could

properly hear the claim. At the same time (and in the

same way), the Court in Martinez preserved the careful balance between state and federal judges. It gave

defendants one fair opportunity to present claims in

federal court if necessary while maintaining state

judges’ primacy in resolving federal constitutional issues affecting state criminal trials overall.

Arizona now argues, however, that when ruling

upon the ineffective-assistance claims that Martinez

allowed to proceed, a federal habeas court may consider only the evidence already in the trial record. If

Arizona prevails, a defendant’s one “full” and “fair” opportunity will be neither. The evidence that existed at

the time of the ineffectively defended trial will almost

never be enough to satisfy Strickland, leaving defendants unable to develop and present even meritorious

claims for relief. That cramped review runs counter to

habeas law’s animating principles.

As former state and federal judges, we are deeply

concerned with the implications of Arizona’s view. Requiring federal judges to blind themselves to evidence

developed to support a Martinez claim will lead to injustices of precisely the kind that giving defendants

one full and fair opportunity is designed to prevent.

6

That result will obviously harm defendants, who will

be left imprisoned without ever having had a fair trial.

But it will also harm judges themselves. Federal

judges, for their part, will have to ignore compelling

evidence of a serious breakdown in the criminal process—or even of a defendant’s innocence. And state

judges will have to live with the uncertainty that, unbeknownst to them, the trials and guilty pleas over

which they presided may have been marred by unconstitutionally poor lawyering.

Against the basic principles of justice and one fair

opportunity outlined just above, Arizona contends in

large part that allowing federal courts to rely upon

newly developed evidence will inundate the federal

courts with habeas cases raising ineffective-assistance

claims. (Pet. Br. 38). But Martinez has been on the

books for nearly ten years. If there were a flood threatening the federal courts, we would have seen the water. Yet Arizona has presented no evidence for its

claim, and we have not observed any either. Rather,

federal district courts can and do reject Martinez

claims that are “insubstantial,” 566 U.S. at 16, without requiring an evidentiary hearing, while leaving

Martinez’s “narrow exception” open to petitioners who

deserve a “meaningful opportunity” to present their

claims, Trevino v. Thaler, 569 U.S. 413, 428 (2013).

Meanwhile, Martinez has spurred states to improve

postconviction proceedings, guaranteeing that state

courts continue to play the primary role in protecting

constitutional rights.

7

ARGUMENT

I.

CRIMINAL DEFENDANTS MUST HAVE

ONE FULL AND FAIR OPPORTUNITY TO

LITIGATE THEIR CLAIMS.

Our system rests on the basic principle that everyone is entitled to her day in court. In the habeas context, where liberty is at stake, criminal defendants

must have one full and fair opportunity to present

their claims, either in state or federal court. Federal

habeas review and AEDPA preserve this opportunity.

And this Court’s decision in Martinez protected it for

ineffective assistance of trial counsel claims in particular, which typically can be raised only in state or federal postconviction review.

A. Due Process Requires One Full And Fair

Opportunity To Be Heard.

“The fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” Mathews v. Eldridge, 424 U.S.

319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S.

545, 552 (1965)). Even in civil cases, the government

cannot “deny[] ... a full and fair hearing” before depriving someone of their rights.” United States v. Ill. Cent.

R.R., 291 U.S. 457, 460 (1934); see, e.g., Allen v.

McCurry, 449 U.S. 90, 95 (1980) (no issue preclusion

unless “the party against whom the earlier decision is

asserted … ha[d] a ‘full and fair opportunity’ to litigate

that issue in the earlier case”) (quoting Montana v.

United States, 440 U.S. 147, 153 (1979)). After all,

“neither judges, the parties, nor the adversary system

performs perfectly in all cases,” so a “full and fair opportunity to litigate is a most significant safeguard.”

8

Blonder-Tongue Lab’ys, Inc. v. Univ. of Ill. Found., 402

U.S. 313, 329 (1971).

The right to a full and fair opportunity applies all

the more forcefully in criminal cases, where life and

liberty are on the line. It is “uncontroversial” that one

held in prison must have a “meaningful opportunity to

demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of” the Constitution. Boumediene v. Bush, 553 U.S. 723, 779 (2008)

(quoting I.N.S. v. St. Cyr, 533 U.S. 289, 302 (2001)).

For this reason, the Due Process Clause requires

states “to furnish a criminal defendant with a full and

fair opportunity to make his defense and litigate his

case.” Paul M. Bator, Finality in Criminal Law and

Federal Habeas Corpus for State Prisoners, 76 HARV.

L. REV. 441, 456 (1963). That is why, for instance, a

parolee “must have an opportunity to be heard” before

his parole is revoked. Morrissey v. Brewer, 408 U.S.

471, 488 (1972). It is also why, so long as a prisoner

makes a showing of mental incompetence, he must

have a “constitutionally adequate opportunity to be

heard” on claims of incompetency. Panetti v. Quarterman, 551 U.S. 930, 952 (2007).

The ineffective assistance of trial counsel claims at

issue here are no different. They, too, must “receive review by at least one state or federal court.” Davila v.

Davis, 137 S. Ct. 2058, 2067 (2017); see also, e.g., Martinez, 566 U.S. at 10–11 (noting that “if counsel’s errors in an initial-review collateral proceeding do not

establish cause to excuse the procedural default in a

federal habeas proceeding, no court will review the

prisoner’s claims”) (emphasis added); Trevino, 569

U.S. at 429 (applying Martinez where a state’s proce-

9

dural design makes it “highly unlikely … that a defendant will have a meaningful opportunity to raise a

claim of ineffective assistance of trial counsel on direct

appeal”) (emphasis added).

B. AEDPA Honors State Primacy While Giving Defendants A Full Opportunity.

1. For more than five decades, federal habeas courts

have played a significant role in guaranteeing that

state defendants have one full and fair opportunity to

press their claims. In Fay v. Noia, 372 U.S. 391 (1963),

this Court held that a federal court’s plenary jurisdiction over habeas petitions was not affected by the petitioner’s procedural defaults of claims during state

court proceedings, so long as the petitioner had not deliberately avoided state procedure. And in Townsend

v. Sain, 372 U.S. 293 (1963), the Court held that federal habeas petitioners deserved an evidentiary hearing on their claims under a wide variety of circumstances, including if “for any reason it appears that the

state trier of fact did not afford the habeas applicant a

full and fair fact hearing.” Id. at 312–18.

Under this regime, evidentiary development in federal courts led to corrections of numerous unconstitutional state court convictions and sentences. For instance, in Miller v. Pate, 386 U.S. 1, 2–6 (1967), the

defendant was sentenced to death after the prosecution presented “a pair of men’s underwear shorts covered with large, dark, reddish-brown stains,” which

prosecution witnesses called “bloody shorts” and

which an expert testified were stained with the victim’s type of blood. Id. at 3–4. The state trial court denied the defendant’s motion to inspect the evidence, id.

at 2, but on federal habeas review, he was permitted

10

to have them analyzed. It turned out the “stains on the

shorts were not blood, but paint,” and that the state

prosecutor had “known” as much all along. Id. at 5–6

(emphasis added). This Court concluded that “the

Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.” Id. at 7.

Other examples of federal habeas courts correcting

unconstitutional convictions and sentences based on

evidence that trial counsel failed to or was unable to

uncover abound. See, e.g., Henderson v. Sargent, 926

F.2d 706, 710–14 (8th Cir. 1991) (trial counsel and

state postconviction counsel failed to investigate readily available evidence implicating the victim’s husband notwithstanding obvious leads); Harris v. Reed,

894 F.2d 871, 877–79 (7th Cir. 1990) (trial counsel presented no evidence and failed to interview two men

who saw the primary alternate suspect fleeing from

the scene, even though counsel told jurors they would

hear evidence about the alternate suspect).

2. Even under Fay and Townsend, however, “[t]he

role of federal habeas proceedings, while important in

assuring that constitutional rights are observed, [wa]s

secondary and limited.” Barefoot v. Estelle, 463 U.S.

880, 887 (1983). That is, federal habeas review was

still premised on the assumption that state courts

would be the primary ones to give full and fair consideration to constitutional claims.

In line with that principle, this Court further emphasized state courts’ primacy in Wainwright v. Sykes,

433 U.S. 72 (1977), which rejected the broader “deliberate bypass” standard from Fay. See id. at 87–88 (emphasizing that the contemporaneous-objection rule

11

“deserves greater respect than Fay gives it, both for

the fact that it is employed by a coordinate jurisdiction

within the federal system and for the many interests

which it serves in its own right”). The Court raised the

bar again in Keeney v. Tamayo-Reyes, 504 U.S. 1

(1992). Keeney explicitly overruled Townsend in favor

of imposing a standard that required petitioners “to

show cause for [their] procedural default, as well as

actual prejudice,” in order to bring their defaulted

claims in a federal habeas proceeding. Id. at 6.

AEDPA’s reforms made the premise of state court

primacy even more of a reality, formally ensuring that

state judges have the “primary responsibility” for preserving constitutional rights. Cullen v. Pinholster, 563

U.S. 170, 182 (2011) (quoting Woodford v. Visciotti,

537 U.S. 19, 27 (2002)). For example, AEDPA encourages state court review (and gives primacy to state

court judges) by requiring federal judges to defer to

state court merits rulings. Before AEDPA, federal habeas courts could review state court rulings on purely

legal issues and mixed questions of fact and law de

novo. See Williams v. Taylor, 529 U.S. 362, 400 (2000).

Under AEDPA, however, a federal habeas court may

grant relief on a claim adjudicated on the merits in

state court only if the legal ruling “was contrary to, or

involved an unreasonable application of,” a prior decision by this Court. 28 U.S.C. § 2254(d)(1). AEDPA’s

factfinding provisions similarly reinforce the state

judge’s pride of place. See, e.g., id. § 2254(e)(1) (rebuttably presuming the correctness of a state court’s factual findings); id. § 2254(d)(2) (limiting review to the

state court record in certain circumstances). If a petitioner fully aired the facts supporting her claim in

state court, the federal judge’s role is again limited to

12

assessing the reasonableness of the state court’s

views.

However, those same provisions show that AEDPA

maintains an important role for federal judges—especially when a petitioner has not had one clear opportunity to present her federal claims. So, for example,

§ 2254(d) requires deference to legal conclusions only

when a “claim … was adjudicated on the merits in

State court.” See Johnson v. Williams, 568 U.S. 289,

293 (2013) (recognizing de novo review for unaddressed claims). And § 2254(e)(1) requires deference

to factfinding only when “a determination of a factual

issue [was] made by a State court.” 28 U.S.C.

§ 2254(d), (e)(1); see Wiggins v. Smith, 539 U.S. 510,

528 (2003). If the petitioner lacked a clear chance to

make her claims in the state proceedings, the rules regarding deference do not apply.

Federal judges’ role under AEDPA thus reflects

Congress’s concern with permitting habeas petitioners

one full and fair opportunity to present their claims.

Indeed, “one bite at the apple” was a common theme

throughout legislative debates over AEDPA. See, e.g.,

141 Cong. Rec. S16892, S16913 (1995) (statement of

Sen. Feinstein) (“[T]his bill provides habeas petitioners with ‘one bite at the apple.’ It assures that no one

convicted of a capital crime will be barred from seeking

habeas relief in Federal court.”); 141 Cong. Rec. S7803,

S7809 (1995) (statement of Sen. Kennedy) (“The proposal to limit inmates to one bite at the apple is sound

in principle.”); id. at S7832 (statement of Sen. Biden)

(“[E]ssentially you get one bite out of the apple.”); see

also William J. Clinton, Statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996

(Apr. 24, 1996) (“If this provision [§ 2254(e)(2)] were

13

read to deny litigants a meaningful opportunity to

prove the facts necessary to vindicate Federal rights,

it would raise serious constitutional questions. I do not

read it that way.”) (emphasis added).

Under this scheme, although federal courts play a

secondary role to state courts, that role is still an important one: they “stand[] as a safeguard against imprisonment and execution of those held in violation of

the law,” Harrington v. Richter, 562 U.S. 86, 91 (2011),

particularly when state defendants have not had a full

and fair opportunity to litigate their federal constitutional claims in state court.

C. Martinez Protects This Opportunity For

Ineffective-Assistance Claims.

Martinez guarantees such an opportunity for a particularly important set of constitutional claims—

claims that the defendant’s trial counsel gave unconstitutionally poor assistance. “The right to the effective assistance of counsel at trial is a bedrock principle

in our justice system.” Martinez, 566 U.S. at 12. That

is because our system relies on “adversarial testing” to

“ultimately advance the public interest in truth and

fairness,” Polk Cnty. v. Dodson, 454 U.S. 312, 318

(1981), and to “best promote the ultimate objective

that the guilty be convicted and the innocent go free,”

Herring v. New York, 422 U.S. 853, 862 (1975). Without effective adversarial testing, there can thus be no

guarantee that the trial was fair, let alone that it

reached the right result on guilt or innocence. In this

way, it is “through counsel that all other rights of the

accused are protected.” Penson v. Ohio, 488 U.S. 75, 84

(1988).

14

However, without meaningful enforcement, this

right to counsel is an “unfulfilled, illusory promise.”

Justin F. Marceau, Gideon’s Shadow, 122 YALE L.J.

2482, 2485 (2013). Consequently, defendants must be

allowed to bring and develop ineffective assistance of

trial counsel claims, as such claims are the “primary

mechanism” through which the right to effective assistance of counsel is enforced. Erwin Chemerinsky, Lessons from Gideon, 122 YALE L.J. 2676, 2688 (2013).

But there is a hitch. Other constitutional claims—

that the prosecution introduced an unduly suggestive

line-up, that it failed to prove an essential element—

can be raised at trial and then litigated on direct appeal, where the defendant enjoys a constitutional right

to a lawyer’s help. Ineffective assistance of trial counsel claims are different. They generally cannot be

raised at trial, because the lawyer cannot be expected

to challenge his own conduct and because, with rare

exceptions, the judge cannot identify violations sua

sponte. Nor can they typically be heard on direct appeal, because they “often depend on evidence outside

the trial record.” Martinez, 566 U.S. at 13.

Postconviction review thus provides the “principal

forum” in which to bring ineffective-assistance claims.

Harrington, 562 U.S. at 103. And if state postconviction review provides a defendant with a full and fair

opportunity to do so, then a federal court must defer to

the state court’s determination, just as it would with

respect to any other issue. See 28 U.S.C. § 2254(d). Accordingly, AEDPA and this Court’s precedents “encourag[e] the full factual development in state court of

a claim that state courts committed constitutional error,” “channel[ing] claims into an appropriate forum,

15

where meritorious claims may be vindicated.” Keeney

v. Tamayo-Reyes, 504 U.S. 1, 9–10 (1992).

Martinez recognized, however, that state postconviction review—where there is currently no constitutional right to counsel—may not always provide a full

and fair opportunity. Therefore, to guarantee that

some court “will review the prisoner’s claims,” this

Court held that “counsel’s errors in an initial-review

collateral proceeding … establish cause to excuse” a

prisoner’s failure to raise his trial ineffectiveness

claim in postconviction review. 566 U.S. at 10–11. In

other words, because state postconviction proceedings

“may not have been sufficient to ensure that proper

consideration was given to a substantial claim,” federal courts may overlook the default and adjudicate

the claim on their own. Id. at 14. This approach aligns

with AEDPA’s core principles: state judges retain

their primary role, but a petitioner prevented from

raising her ineffective assistance claim in state postconviction proceedings retains her one full and fair opportunity to raise that claim in federal habeas proceedings. See supra Part I.B.

If Arizona prevails here, however, Martinez’s promise will ring hollow in all but the most unusual circumstances. Arizona believes that, in adjudicating the

trial ineffectiveness claims that Martinez allows federal habeas petitioners to press, judges may only consider the evidence in the record from their flawed state

court proceedings; they may not rely on the evidence

used to justify excusing the petitioner’s procedural default, let alone additional evidence gathered in a new

evidentiary hearing. (Pet. Br. 26). But as explained

above (and as this Court has repeated time and time

16

again), “the inherent nature of most ineffective assistance of trial counsel claims means that the trial court

record will often fail to contain the information necessary to substantiate the claim.” Trevino, 569 U.S. at

424 (internal quotation marks omitted) (quoting Ex

parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App.

1997) (en banc)); see also, e.g., Massaro v. United

States, 538 U.S. 500, 505 (2003) (same). And because

of that inescapable fact, the version of federal habeas

review imagined by Arizona will fall far short of a full

and fair opportunity to press one’s ineffective-assistance claims. That outcome contravenes the principles

underlying habeas law and transforms Martinez’s crucial safeguard into a Pyrrhic victory.

II. ARIZONA’S APPROACH HARMS FEDERAL

AND STATE JUDGES.

By preventing federal courts from relying upon evidence developed in a Martinez hearing, Arizona’s approach would thus prevent petitioners’ claims from being meaningfully heard in any court, state or federal.

Such a result obviously creates the very “unfairness”

to defendants that this Court’s precedents have

guarded against. Trevino, 569 U.S. at 425. But it also

imposes serious harms on federal and state judges,

forcing the former to blind themselves to potential injustice and shaking the latter’s confidence in the convictions entered under their supervision.

A. Federal Judges Should Not Have To

Ignore Compelling Evidence Developed

During A Martinez Hearing.

1. Under AEDPA, federal judges’ review is deferential. But in no circumstances should they be “required

to exhibit a naiveté from which ordinary citizens are

17

free.” Dep’t of Comm. v. New York, 139 S. Ct. 2551,

2575 (2019) (quoting United States v. Stanchich, 550

F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.)). But Arizona’s position would make things even worse than

that. Under its approach, federal judges must ignore

evidence developed to show a substantial Martinez

claim.

Forcing federal judges to blind themselves to such

evidence harms the integrity of the judiciary.

“[C]oncern about the injustice that results from the

conviction of an innocent person has long been at the

core of our criminal justice system.” Schlup v. Delo,

513 U.S. 298, 325 (1995). By requiring federal judges

to look the other way, Arizona’s view would make

judges complicit in the greatest miscarriage of justice

of all—the imprisonment and execution of innocent

people.

Arizona’s view would make federal judges accomplices to other kinds of injustice as well. “The constitutional rights of criminal defendants … are granted to

the innocent and the guilty alike,” and this Court has

long “decline[d] to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the

determination of actual guilt.” Lafler v. Cooper, 566

U.S. 156, 169 (2012) (quoting Kimmelman v. Morrison,

477 U.S. 365, 380 (1986)). But requiring federal judges

to shield their eyes against evidence of ineffective assistance would make them consciously overlook the violation of all sorts of constitutional rights.

For example, the Constitution guarantees convicted

capital defendants the right to present mitigating evidence. See Eddings v. Oklahoma, 455 U.S. 104, 114

18

(1982). Habeas petitioners might develop crucial mitigating evidence to show trial counsel’s (and postconviction counsel’s) ineffectiveness, but it would all be for

naught if federal judges are limited to the state court

record. If Arizona prevails, those judges will have to

stand by—perhaps even allowing the defendant to be

executed—while knowing that the sentencer never

even considered facts that could have led the judge or

jury toward mercy. So too for sentencing errors in noncapital cases. This Court has made clear that “any

amount of actual jail time” “has Sixth Amendment significance.” Glover v. United States, 531 U.S. 198, 203

(2001). But if Arizona is right, then federal judges may

have to let state prisoners endure years of unlawful

incarceration simply because the evidence demonstrating counsel’s ineffectiveness came out too late.

Because the right to counsel protects all other

rights, see supra at 13–16, injustices like these are easily multiplied across the Constitution. Under Arizona’s view, federal judges will have to watch on as

state prisoners whose rights were violated in various

ways—a coerced confession that should have been suppressed, a key witness whose testimony could not be

confronted, and so on—cannot prevail on their meritorious ineffective-assistance claims because the judge

cannot consider what everyone knows to be true.

AEDPA does not counsel that result. “When Congress

codified new rules governing this previously judicially

managed area of law, it did so without losing sight of

the fact that the writ of habeas corpus plays a vital

role in protecting constitutional rights.” McQuiggin v.

Perkins, 569 U.S. 383, 397–98 (2013) (quoting Holland

v. Florida, 560 U.S. 631, 649 (2010)).

19

2. These concerns are not hypothetical. Take first

the irreversible injustice of the wrongful conviction

and “execution of a person who is entirely innocent.”

Schlup, 513 U.S. at 324–25. Arizona’s position threatens to bring about that result in this very case.

Respondent Jones’s state-appointed counsel failed

to uncover significant exculpatory evidence at trial,

and his state-appointed postconviction counsel failed

to raise an ineffective assistance of trial counsel claim

in those proceedings. (Indeed, Mr. Jones’s postconviction counsel chose “to forego any investigation into the

State’s strongest evidence of guilt.” JA280.) But at a

hearing held to determine whether to excuse the default of Mr. Jones’s ineffective assistance claim under

Martinez, the evidence showed that the victim’s injury

had occurred at least two days before her death—that

is, not during the short window of time during which

she was in Mr. Jones’s care. JA221–26. It further

showed that blood evidence in Mr. Jones’s vehicle did

not result from violence against the victim, JA232–34,

and that multiple other suspects—including the victim’s mother—may have beaten the victim. See

JA245–47. Moreover, the State’s forensic pathologist

admitted at the hearing that the methodology used to

create a timeline from bruising evidence was “scientifically unreliable”—in fact, the district court concluded

it was “scientifically unsupport[ed] and untrue”—and

yet that evidence “went unchallenged at trial.” JA126,

JA129, JA262.

Based on this evidence, the district court held that

Mr. Jones could proceed on his claim; indeed, it held

that Mr. Jones had demonstrated that counsel unjustifiably failed to perform an adequate pretrial investigation and to impeach the state’s evidence. JA284–85.

20

As the district court concluded, “counsel’s deficient investigation pervaded the entire evidentiary picture”

and “‘render[ed] the result’” of the trial “’unreliable.’”

JA264 (quoting Strickland v. Washington, 466 U.S.

668, 687 (1984)). Yet under Arizona’s view, the federal

district court could allow Mr. Jones’s claim to proceed

under Martinez, but then should have ignored all of

the evidence developed to support that claim when it

came time for the merits. Frankly, that is absurd.

Other real-world examples prove that, under Arizona’s approach, federal judges would have to blind

themselves to compelling evidence of other breakdowns in the process as well. In Harris v. Wallace,

Harris—caught up in separate federal and state prosecutions—pleaded guilty to federal charges and was

sentenced to 25 years in prison. 984 F.3d 641, 644 (8th

Cir. 2021). He then pleaded guilty to state charges on

the “understanding,” based on the prosecutor’s “proposal” and his lawyer’s advice, that his state sentence

would run concurrently with his federal sentence. Id.

at 645. However, although the state court ordered the

sentences to run concurrently, that order “had no effect”; federal sentencing rules made the sentences run

consecutively. Id.; see id. at 644–45 & n.2. Yet Harris’s

postconviction counsel failed to raise an ineffectiveness claim challenging the validity of Harris’s plea in

light of the fifteen additional years he would serve

given his consecutive sentences. See id. at 646.

After the district court denied Harris’s request for

federal habeas relief, the Eighth Circuit remanded for

an evidentiary hearing on this classic case of ineffective assistance. See id. at 646–47. If Arizona is right,

then the evidence developed at that hearing—which

could further corroborate Harris’s account of his plea

21

proceedings or support his claim that he would not

have pleaded guilty but for the mistaken advice—must

be ignored when considering whether Harris’s rights

were violated. No judge should be put in that position.

This case and Harris are not the only examples. In

Stokes v. Stirling, federal habeas proceedings made

clear that postconviction counsel’s decision to abandon

a trial ineffectiveness claim about mitigating evidence

made no sense. See –– F.4th ––, 2021 WL 3669570 (4th

Cir. Aug. 19, 2021). Stokes’s childhood was “marked by

extreme abuse and neglect”—including living without

running water or indoor plumbing, witnessing the

early death of his father and mother, suffering from

sexual abuse, and more—yet trial counsel presented

only testimony from a retired warden intended to show

that Stokes would adapt well to life in prison. Id. at *1;

see id. at *1–5. In federal postconviction proceedings,

state postconviction counsel’s testimony demonstrated

that they lacked any strategic reason for failing to

properly investigate Stokes’s mitigation defense, and

expert testimony demonstrated that such evidence

could have had real pull with the jury. See id. at *2,

*8–9, *13. Relying in part on this evidence, the Fourth

Circuit held that Martinez allowed Stokes to proceed

on his procedurally defaulted claim and that, on the

merits, counsel had rendered ineffective assistance.

See id. at *6, *10–14.

Other cases have similar fact patterns, where evidence uncovered at the Martinez stage demonstrate

counsel’s possible or even certain errors. See, e.g.,

White v. Warden, Ross Corr. Inst., 940 F.3d 270 (6th

Cir. 2019) (remanding for an evidentiary hearing on

defendant’s ineffective assistance of trial claim where

trial counsel was himself facing serious criminal

22

charges brought by the same prosecutor’s office, and

noting that defendant’s counsel-related inability to develop evidence “hamstr[ung] th[e] court’s ability to determine whether his trial counsel was constitutionally

ineffective”) (internal quotations omitted), cert. denied

sub nom. Morgan v. White, 140 S. Ct. 2826, (2020);

Brown v. Brown, 847 F.3d 502 (7th Cir. 2017) (remanding for an evidentiary hearing where trial and

postconviction counsel failed to request a limiting instruction on a co-defendant’s confession, resulting in

the 13-year-old defendant receiving a 60-year prison

sentence); Gallegos v. Shinn, No. CV-01-01909-PHXNVM, 2020 WL 7230698, at *7–19 (D. Ariz. Dec. 8,

2020) (granting the writ for resentencing in a capital

case where federal habeas testimony demonstrated

that repeated ATV accidents and drug and alcohol

abuse led to the defendant’s organic brain damage). If

Arizona wins, federal judges in cases like these will

have to ignore clear evidence that ineffective defense

counsel failed to develop or present arguments that

could have won someone a new trial, led to his acquittal, or even spared him from death.

Of course, federal judges must operate within

AEDPA’s structure. But that structure does not require federal judges to abdicate their duty to ensure

that convictions and sentences are appropriate and

just. The above examples show that Martinez hearings—and the evidence developed through those hearings—are valuable tools that federal judges may use

to defer to state judges where appropriate while safeguarding federal constitutional rights. By allowing

federal judges to decide for themselves where a petitioner’s ineffective counsel failed to develop certain evidence or to bring certain claims, Martinez gives these

23

petitioners the full and fair opportunity to litigate

these claims that they lacked in state court.

B. Martinez Protects State Judges’ Role As

The Primary Bulwark Against Error.

Under the balance struck by AEDPA, state judges

do not ask for or receive blind deference from federal

judges when it comes to state postconviction proceedings. Indeed, rather than encroaching on state judges’

independence and authority, Martinez allows state

judges greater certainty that their decisions were just,

by helping ensure that those convicted in their courtrooms, and those denied state postconviction relief,

had adequate access to counsel. These concerns are

even weightier in states like Arizona, where there is

no way to raise ineffectiveness of state postconviction

counsel in state court, and where the postconviction

review system is particularly dysfunctional.

1. State judges must rely on a criminal defendant’s

counsel to provide constitutionally adequate assistance; otherwise, the criminal proceedings that they

oversee cannot be trusted to produce “just results.”

Strickland, 466 U.S. at 696. This is obviously true at

trial, where errors of the kinds discussed above

threaten to deprive defendants of their rights and to

generate wrongful convictions. But it is also true at the

“critical point” in “today’s criminal justice system,”

“the negotiation of a plea bargain.” Missouri v. Frye,

566 U.S. 134, 144 (2012). Counsel’s errors in that process can have just as devastating an effect on a defendant’s rights. If state judges cannot rely on the validity

of guilty pleas, then they cannot trust that they are

doing justice in the vast majority of cases.

24

Martinez—and the ability to consider evidence developed in federal court at issue here—provides state

judges with assurance that both kinds of convictions

are correct. As cases like this one and Stirling show,

state court judges can rest assured that defendants

who were convicted in their courtrooms without the effective assistance of counsel will have at least one full,

fair opportunity to vindicate their constitutional

rights. So too for the far greater number of cases resolved by guilty plea. As cases like Harris show, state

court judges can similarly be certain that those who

gave up their right to a trial based upon unconstitutionally bad advice will have one clean shot to raise the

issue in postconviction proceedings. By allowing federal judges to consider evidence developed in support

of a Martinez claim, the Ninth Circuit’s position below

increases state judges’ certainty that their criminal

proceedings were fair.

2. Martinez also provides necessary assurance to

state judges presiding over state postconviction proceedings. In some states, such as Iowa, a defendant

may raise his ineffectiveness of state postconviction

counsel in a successive proceeding before the state

court. Allison v. State, 914 N.W.2d 866, 880 (Iowa

2018); Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996)

(“Ineffective assistance of postconviction counsel can

provide ‘sufficient reason’ under Iowa Code section

822.8 for a successive postconviction application raising new issues.”). However, Arizona and other states

provide no process for a defendant to raise an ineffectiveness of state postconviction counsel claim in a

state postconviction proceeding.

25

Consequently, in states like Arizona, a state judge

would be necessarily blind to, or would be forced to ignore, evidence of state postconviction counsel’s ineffective assistance. And that limitation on state judges is

especially harmful in states like Arizona, which has a

widely recognized history of ineffective postconviction

counsel. See American Bar Association, Comments of

the American Bar Association

(Feb. 26, 2018),

https://tinyurl.com/3dtn27nc (criticizing Arizona’s system for appointment of capital postconviction counsel

and noting “grave[] risks” of capital defendants “lacking effective assistance of counsel, contrary to principles of fairness and due process and contrary to the

fundamental tenets of habeas corpus proceedings”). In

those instances, federal court is the only place where

such claims can be heard. Martinez thus provides crucial assurance to state judges that the ineffectiveness

of state postconviction counsel, and their unavoidable

lack of agency concerning this ineffectiveness, has not

hampered the defendant’s full and fair opportunity,

and has not caused the state judge to become an accessory to injustice.

3. In addition to improving judges’ confidence in individual state criminal proceedings, Martinez has

spurred the improvement of state criminal justice systems as a whole. This, too, allows state judges to have

greater confidence that convictions and sentences result from meaningful adversarial testing.

In this vein, consider first increases in the number

of states that provide appointed counsel in postconviction proceedings. Martinez rightly emphasized that

“[t]o present a claim of ineffective assistance at trial,”

“a prisoner likely needs an effective attorney.” 566

U.S. at 12. Since then, state courts and legislatures

26

have increasingly recognized the need for adequate

postconviction counsel by establishing procedures ensuring that defendants—particularly in capital

cases—are able to receive assistance. See Lee Kovarsky, Structural Change in State Postconviction Review, 93 NOTRE DAME L. REV. 443 (2017). For example,

in 2017, Alabama began appointing postconviction

counsel to defendants in capital cases, and significantly raised the cap on total compensation an appointed lawyer could receive. Ala. Code § 13A-5-53.1.

Prior to 2017—and before Martinez—Alabama did not

provide postconviction counsel for any petitioners facing capital punishment. See Kovarsky, supra, at 448.

As another example, a New Jersey intermediate court

(citing Martinez) held “that defendants have a State

constitutional right to counsel when raising ineffective

assistance of trial counsel for the first time, whether

raised on direct appeal or by way of PCR.” State v.

Quixal, 70 A.3d 749, 756 (N.J. Super. Ct. App. Div.

2013).

In addition to guaranteeing access to postconviction

counsel, several states have recently established baseline standards—or heightened existing standards—for

that counsel in capital cases. For example, Idaho Administrative Code Rule 61.01.02, which took effect in

2019, mandates that postconviction counsel in capital

cases have at least ten years of criminal defense experience, and have undergone capital defense training

within two years preceding appointment. And Louisiana now requires lead postconviction counsel in capital cases to have at least five years of relevant experience. See La. Admin. Code tit. 22, Pt XV, § 915.

Some states have also established additional procedures to safeguard against ineffective postconviction

27

counsel. As mentioned above, Iowa now affords a defendant a second collateral proceeding if postconviction counsel was ineffective in the initial one. See Allison, 914 N.W.2d at 880, 890 (noting Martinez’s emphasis on the “importance of effective assistance of counsel

in an initial-review collateral proceeding,” and adding

that, under Iowa law, “successive petitions for [posconviction review] may be filed if counsel is ineffective in

the first petition”). Allison further recognized that effective assistance of postconviction counsel was crucial

enough to warrant tolling of the statute of limitations

for postconviction review. Id. at 891.

States have also created new avenues for postconviction relief. For example, several states, including

Texas and California, have developed “changed science” writs that allow petitioners to challenge their

convictions based on scientific evidence that was not

available at the time of trial. See, e.g., Tex. Code Crim.

Proc. Ann. art. 11.073; Cal. Penal Code § 1473. In recent years, four more states—Connecticut, Wyoming,

Michigan, and Nevada—have followed suit. Valena E.

Beety, Changed Science Writs and State Habeas Relief,

57 HOUS. L. REV. 483, 526 (2020). This significant expansion of state postconviction relief highlights the

fact that, rather than shifting the focus to federal court

review, Martinez has not detracted from state judges’

role in the habeas realm. Indeed, Martinez has safeguarded state judges’ crucial role by encouraging

states to provide petitioners with a fair chance to present their claims in state postconviction review. It is

only if that process breaks down that Martinez and its

federal backstop come into play.

28

C. Martinez Has Not Flooded The Federal

Courts.

It is clear, then, that Arizona’s view of Martinez

would deprive petitioners of the promise of a full and

fair opportunity to present an ineffective assistance of

counsel claim, forcing judges to participate in exactly

the injustices that this Court sought to prevent in

Martinez. Respondents have explained why Arizona is

wrong to claim that AEDPA does not require that result. See Resp. Br. 28–43. But Arizona is also wrong in

claiming that giving petitioners their one fair shot will

swamp the federal courts with evidentiary hearings on

ultimately meritless Martinez claims.

Martinez has been in force for nearly ten years. If

allowing petitioners to air their substantial ineffective

assistance of trial counsel claims were overburdening

federal judges, we would know by now. But no such

flood has arrived. The Martinez gateway is narrow,

and accordingly, federal district courts regularly dismiss non-substantial Martinez claims.2

2 See, e.g., Williams v. Sec’y, Fla. Dep’t of Corr., No. 18-CV-985TJC-JRK, 2021 WL 3666326, at *8 (M.D. Fla. Aug. 18, 2021);

Dodd v. Lindamood, No. 11-CV-1090, 2021 WL 3666907, at *29

(M.D. Tenn. Aug. 18, 2021); Tabler v. Lumpkin, No. W-10-CA034-RP, 2021 WL 2383726, at *17 (W.D. Tex. June 10, 2021);

Foncette v. Muse, No. CV-18-00691-PHX-DJH, 2021 WL 1163081,

at *7 (D. Ariz. Mar. 26, 2021); Jenkins v. Lumpkin, No. SA-20CA-0553-XR, 2021 WL 1069046, at *4 (W.D. Tex. Mar. 18, 2021);

Stiegler v. Neven, No. 14-CV-01274-APG-DJA, 2021 WL 638031,

at *8 (D. Nev. Feb. 18, 2021); Wanamaker v. Smith, No. 20-1332,

2021 WL 601543, at *11–14 (E.D. Pa. Feb. 16, 2021); Bowman v.

James, No. 20-CV-00666-TMC-MHC, 2020 WL 7752650, at *13

(D.S.C. Dec. 8, 2020), report and recommendation adopted, 2020

WL 7711343 (D.S.C. Dec. 29, 2020); McMillan v. Inch, No.

29

Indeed, as Petitioners’ own amici have shown, federal district courts are resolving Martinez issues and

show no sign of being overwhelmed by such claims. Br.

of Tex. et al. as Amici Curiae in Supp. of Pet’rs 20–27.

To be sure, the amici States argue that States are

“forced to litigate” claims that could not have been developed because of ineffective assistance of counsel. Id.

at 20. But that litigation burden should not be overexaggerated. First, states faced with a Martinez claim in

federal court may always assert that the claim is “insubstantial,” and, if that is so, then the court can reject

the claim without a hearing. Martinez, 566 U.S. at 15–

16; supra at 28–29 n.2. Second, even if the petitioner’s

substantial allegations lead to an evidentiary hearing,

states cannot reasonably complain about that outcome. By definition, states have not had to previously

defend against Martinez claims on the merits; they

could not have been pressed on direct review, and they

were not pressed in state postconviction proceedings

because of counsel’s unacceptable errors. It is not too

much of a burden on the state to respond to a defendant’s first and only bite at the apple.

This point leads to the last one. To the extent that

evidentiary development requires time and resources,

the Court should strike the balance in favor of permitting petitioners to fully and fairly present their claims.

Martinez promised defendants one clear opportunity

to protect their essential right to trial counsel. Forcing

judges to ignore key evidence of innocence or other

17CV876-LC-HTC, 2020 WL 8084277, at *11 (N.D. Fla. Oct. 8,

2020), report and recommendation adopted, 2021 WL 54214 (N.D.

Fla. Jan. 6, 2021); Fields v. Blades, No. 95-CV-00422-BLW, 2017

WL 1100897, at *3–4 (D. Idaho Mar. 21, 2017).

30

breakdowns in the criminal process while adjudicating

those claims leaves state court judges to wonder

whether an injustice occurred in their courtrooms and

makes federal judges complicit in injustice. Nothing in

AEDPA or this Court’s precedents compels that result.

CONCLUSION

The Court should affirm the judgments below.

September 20, 2021

Respectfully submitted,

JEFFREY R. JOHNSON

Counsel of Record

AMELIA A. DEGORY

ELIZABETH S. FASSIH

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

jeffreyjohnson@jonesday.com

Counsel for Amici Curiae