Amicus Curiae Brief — David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry, Petitioner v. David Martinez Ramirez
Supreme Court briefSep 20, 2021
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No. 20-1009
IN THE
Supreme Court of the United States
DAVID SHINN, et al.,
Petitioners,
v.
DAVID MARTINEZ RAMIREZ and BARRY LEE JONES,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE AMERICAN BAR ASSOCIATION
AS AMICUS CURIAE SUPPORTING RESPONDENTS
REGINALD M. TURNER
ALAN E. SCHOENFELD
Counsel of Record
RACHEL E. CRAFT
AMERICAN BAR ASSOCIATION
JARED D. HOFFMAN
321 North Clark Street
ELEANOR C. DAVIS
WILMER CUTLER PICKERING Chicago, IL 60610
(312) 988-5000
HALE AND DORR LLP
abapresident@
7 World Trade Center
americanbar.org
250 Greenwich Street
New York, NY 10007
(212) 230-8800
URVASHI MALHOTRA
WILMER CUTLER PICKERING
HALE AND DORR LLP
2600 El Camino Real
Palo Alto, CA 94306
(650) 858-6000
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................... ii
INTEREST OF AMICUS CURIAE............................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................................... 5
ARGUMENT........................................................................ 6
I.
AN EVIDENTIARY HEARING IS NECESSARY
TO FULLY VINDICATE THE RIGHT TO
COUNSEL ........................................................................ 6
II. MARTINEZ DOES NOT ENCOURAGE
PRISONERS AND THEIR COUNSEL TO
WITHHOLD CLAIMS AND EVIDENCE UNTIL
FEDERAL HABEAS PROCEEDINGS ........................... 13
CONCLUSION ................................................................. 22
ii
TABLE OF AUTHORITIES
CASES
Page(s)
Application of Griffiths, 413 U.S. 717 (1973)................. 17
Buck v. Davis, 137 S. Ct. 759 (2017) ................................. 8
Carpenter v. Davis, No. 02-CV-1145, 2017 WL
2021415 (N.D. Tex. May 12, 2017) ............................ 12
Coleman v. Thompson, 501 U.S. 722 (1991) .................... 8
Davila v. Davis, 137 S. Ct. 2058 (2017)........................... 18
Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) ............. 12
Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) ............ 13
Douglas v. California, 372 U.S. 353 (1963)...................... 8
Ex parte Garland, 71 U.S. 333 (1866) ............................. 17
Florida v. Nixon, 543 U.S. 175 (2004) .............................. 3
Gallow v. Cooper, 570 U.S. 933 (2013) (mem.) .............. 11
Gideon v. Wainwright, 372 U.S. 335 (1963) ................. 6, 7
Hamblin v. Mitchell, 354 F.3d 482 (6th Cir.
2003) ............................................................................... 3
Johnson v. Zerbst, 304 U.S. 458 (1938)............................. 6
Martinez v. Ryan, 566 U.S. 1 (2012) ...................... passim
McBride v. Glunt, No. 17-CV-5374, 2020 WL
1953658 (E.D. Pa. Apr. 23, 2020) .............................. 12
McCoy v. Court of Appeals of Wisconsin, 1st
District, 486 U.S. 429 (1988)........................................ 5
Padilla v. Kentucky, 559 U.S. 356 (2010) .................. 4, 19
Powell v. Alabama, 287 U.S. 45 (1932) ............................ 6
iii
TABLE OF AUTHORITIES—Continued
Page(s)
Purkey v. United States, 964 F.3d 603 (7th Cir.
2020) ............................................................................... 8
Rompilla v. Beard, 545 U.S. 374 (2005) ....................... 3, 5
Strickland v. Washington, 466 U.S. 668 (1984)
......................................................................... 4, 7, 14, 19
Sullivan v. Jones, No. 12-CV-250, 2015 WL
4756190 (N.D. Fla. Aug. 11, 2015) ................ 10, 11, 12
Trevino v. Thaler, 569 U.S. 413 (2013) ....... 7, 8, 11, 12, 19
United States v. Cronic, 466 U.S. 648 (1984) ................. 18
Wainwright v. Sykes, 433 U.S. 72 (1977)........................ 21
Wiggins v. Smith, 539 U.S. 510 (2003) .................... 3, 5, 12
Williams v. Taylor, 529 U.S. 362 (2000) .......................... 5
DOCKETED CASES
Ayestas v. Davis, No. 16-6795 (U.S.) .............................. 10
STATUTES AND RULES
28 U.S.C. § 2254 ......................................................... 5, 7, 11
Supreme Court Rule 37 ...................................................... 1
OTHER AUTHORITIES
ABA, Criminal Justice Standards (4th ed.
2017), https://bit.ly/3kjFGtH ............................ 2, 4, 15
ABA Death Penalty Representation Project,
List of Cases Citing to the ABA Guidelines,
https://bit.ly/3AqW1m7 (visited Sept. 8,
2021). .............................................................................. 3
iv
TABLE OF AUTHORITIES—Continued
Page(s)
ABA Guidelines (2003), https://bit.ly/2Z4MB1P
(visited Sept. 7, 2021) ................................... 2, 3, 13, 16
ABA, Mission and Association Goals,
https://bit.ly/3hFZiGX (visited Sept. 7,
2021) ............................................................................... 2
ABA, Model Rules for Lawyer Disciplinary
Enforcement (2007), https://bit.ly/3CjUY7W .......... 17
ABA, Model Rules of Professional Conduct
(2020), https://bit.ly/3hKtWPu.................................. 15
Baumgartner, Frank R., Rates of Reversals in
the North Carolina Death Penalty, U.N.C.
Chapel Hill (Mar. 22, 2010), https://
unc.live/3zgKZP7.......................................................... 9
Baumgartner, Frank R. & Tim Lyman,
Louisiana Death-Sentenced Cases and
Their Reversals, 1976-2015, 7 J. Race,
Gender, & Poverty 58 (2016), https://
unc.live/3CuMVWh ...................................................... 9
Blume, John H. & Sheri Lynn Johnson, Gideon
Exceptionalism?, 122 Yale L.J. 2126 (2013)........... 19
Bureau of Justice Statistics, U.S. Dep’t of
Justice, Capital Punishment, 2013 –
Statistical Tables\ (Dec. 19, 2014), https://
bit.ly/3tSHZr9 ............................................................... 9
Bureau of Justice Statistics, U.S. Dep’t of
Justice, Capital Punishment, 2018 –
Statistical Tables (Sept. 2020), https://
bit.ly/2XHdyIu.............................................................. 9
v
TABLE OF AUTHORITIES—Continued
Page(s)
Ellis, Michael, A Tale of Three Prejudices:
Restructuring the “Martinez Gateway”, 90
Wash. L. Rev. 405 (2015) ........................................... 19
King, Nancy J., Enforcing Effective Assistance
After Martinez, 122 Yale L.J. 2428 (2013) ......... 19, 20
Kovarsky, Lee, Delay in the Shadow of Death,
95 N.Y.U. L. Rev. 1319 (2020) .................................. 21
Law, Cristina, Trevino v. Thaler: Falling Short
of Meaningful Federal Habeas Corpus
Reform, 105 J. Crim. L. & Criminology 499
(2015) ............................................................................ 20
Maher, Robin M., Improving State Capital
Counsel Systems Through Use of the ABA
Guidelines, 42 Hofstra L. Rev. 419 (2013) .............. 14
Marcus, Martin, The Making of the ABA
Criminal Justice Standards: Forty Years
of Excellence, 23 Crim. J. 10 (Winter 2009) .............. 4
Primus, Eve Brensike, Effective Trial Counsel
After Martinez v. Ryan: Focusing on the
Adequacy of State Procedures, 122 Yale
L.J. 2604 (2013) ........................................................... 20
IN THE
Supreme Court of the United States
No. 20-1009
DAVID SHINN, et al.,
Petitioners,
v.
DAVID MARTINEZ RAMIREZ and BARRY LEE JONES,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTEREST OF AMICUS CURIAE1
Pursuant to Supreme Court Rule 37.3, the American Bar Association (“ABA”) respectfully submits this
brief as amicus curiae in support of Respondents.
The ABA is the largest association of attorneys and
legal professionals in the world. Its members come
from all fifty States, the District of Columbia, and the
United States territories. Its membership includes attorneys in law firms, corporations, nonprofit organizations, and local, State, and federal governments, as well
as judges, legislators, law professors, law students, and
1
Pursuant to Rule 37.6, amicus curiae certifies that no counsel for a party authored this brief in whole or in part and that no
person or entity, other than amicus, its members, or its counsel,
has made a monetary contribution to the preparation or submission of this brief. Letters from the parties consenting to the filing
of this brief have been filed with the Clerk of this Court.
2
associates in related fields.2 Since its inception, and as
one of the cornerstones of its mission, the ABA has actively sought to improve the quality of American legal
services by “[p]romot[ing] competence, ethical conduct
and professionalism.”3 In particular, the ABA has long
been committed to the provision of competent and effective counsel in criminal and related proceedings.
The ABA has been an authority on the issue of representation in capital cases, specifically, for decades.4
Similarly, for decades, the ABA has developed nationally implemented models that form the basis for the existing systems that effectively regulate attorney conduct. These professional standards of conduct and enforcement systems guard against and sanction the type
of misconduct the State hypothesizes about in this case.
Specifically, in 1989, the ABA House of Delegates
adopted Resolution 122, Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases (“ABA Guidelines”), which were designed to
“amplify previously adopted [ABA] positions on effective assistance of counsel in capital cases [and to] enumerate the minimal resources and practices necessary
to provide effective assistance of counsel.” ABA Guide2
Neither this brief nor the decision to file it should be interpreted to reflect the views of any judicial member of the ABA. No
member of the ABA Judicial Division Council participated in the
preparation of this brief, or in the adoption or endorsement of the
positions in it.
3
ABA Mission and Association Goals, ABA, https://bit.ly/
3hFZiGX (visited Sept. 7, 2021).
4
The ABA formed the Death Penalty Representation Project
in 1986, developed the Criminal Justice Standards for the Defense
Function (“ABA Criminal Justice Standards”), and created an
ABA policy dating back to 1979 calling for the appointment of
post-conviction counsel in capital cases.
3
lines, intro. cmt. (1989).5 The Guidelines were the result of an in-depth process for ascertaining the prevailing practices for capital defense across the country. In
February 2003, the ABA approved revisions to the
ABA Guidelines to update and expand upon the obligations of lawyers in death penalty jurisdictions to ensure
due process of law and justice. The ABA Guidelines
reflect longstanding norms of capital defense practice
based on a consensus about the essential elements of
effective representation of clients facing capital punishment.6 The ABA Guidelines have been utilized in
hundreds of cases by state and federal courts, including
this Court, as guides by which to measure reasonable
counsel performance.7
The ABA has also published Standards for Criminal Justice (“ABA Standards”), which are among the
ABA’s most prominent efforts to improve the quality of
the criminal justice system. Begun in 1964 under the
aegis of then-ABA President (and later Justice) Lewis
Powell, and developed and refined over the last forty
5
ABA Guidelines, https://bit.ly/2Z4MB1P (visited Sept. 7,
2021).
6
See, e.g., Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003)
(“[T]he [ABA] standards merely represent a codification of
longstanding, commonsense principles of representation understood by diligent, competent counsel in death penalty cases. The
ABA standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same
type of longstanding norms referred to in Strickland in 1984 as
‘prevailing professional norms’ … .”).
7
Rompilla v. Beard, 545 U.S. 374 (2005); Florida v. Nixon,
543 U.S. 175 (2004); Wiggins v. Smith, 539 U.S. 510 (2003); see also
ABA Death Penalty Representation Project, List of Cases Citing
to the ABA Guidelines, https://bit.ly/3AqW1m7 (visited Sept. 8,
2021).
4
years, the ABA Standards represent a collection of
“best practices” based on the consensus views of a
broad array of professionals involved in the criminal
justice system.8 The ABA Standards embody the consistent recognition by ABA task forces of prosecutors,
defenders and others in the criminal justice field that
defendants must have effective assistance of counsel
during the first proceeding in which a defendant may
bring an ineffective assistance of counsel claim
(“IATC”), regardless of whether that proceeding is direct appeal or state post-conviction review. While the
ABA Standards are not binding, they have been recognized by this Court as “valuable measures of the prevailing professional norms of effective representation.”
Padilla v. Kentucky, 559 U.S. 356, 366-367 (2010); see
also Strickland v. Washington, 466 U.S. 668, 688 (1984)
(“Prevailing norms of practice as reflected in American
Bar Association standards and the like ... are guides to
determining what is reasonable”). Indeed, this Court
has repeatedly looked to the ABA Standards as a guide
8
The ABA Standards are developed through the efforts of
broadly representative task forces made up of prosecutors, judges,
defense lawyers, academics, the public and other groups that may
have a special interest in the subject, as well as by the diverse
membership of the ABA. Before they become official ABA policy,
they must be approved by vote of the ABA House of Delegates
(“HOD”). The HOD is composed of more than 550 representatives
from states and territories, state and local bar associations, affiliated organizations, ABA sections, divisions and members, and the
Attorney General of the United States, among others. The ABA
Standards are divided into volumes according to topical area and
have been amended over the years by the same process. A complete set of the Standards and a history of their development is
available at https://bit.ly/3kjFGtH; see also Marcus, The Making of
the ABA Criminal Justice Standards: Forty Years of Excellence,
23 Crim. J. 10, 14-15 (Winter 2009) (describing the process by
which ABA Standards are developed and promulgated).
5
when drawing conclusions about the effectiveness of an
attorney’s representation.9
INTRODUCTION AND SUMMARY OF ARGUMENT
In Martinez v. Ryan, 566 U.S. 1 (2012), this Court
recognized that to fulfill the promise of effective trial
counsel prescribed in the Sixth Amendment, federal
courts may forgive procedural default in state court by
ineffective state post-conviction counsel so that the
federal court can—for the first time—review the underlying claim of ineffective assistance of trial counsel.
Without the narrow pathway that Martinez provides
for state prisoners to avoid procedural default, prisoners seeking relief in federal courts on claims of ineffective assistance of trial counsel who also received ineffective representation in state post-conviction proceedings would lack even a single opportunity to meaningfully vindicate the bedrock right to effective representation at trial. Access to an evidentiary hearing on a 28
U.S.C. § 2254 motion is critical to marshal and present
evidence to meet the Martinez criteria. Without access
to an evidentiary hearing in federal court, prisoners are
9
See, e.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003) (“Counsel’s conduct … fell short of the standards for capital defense work
articulated by the American Bar Association (ABA)—standards to
which we long have referred as guides to determining what is reasonable.” (quotation marks omitted)); Rompilla v. Beard, 545 U.S.
374, 387 (2005) (stating that the ABA’s Standards for Criminal
Justice “describe[] the obligation [of defense counsel] in terms no
one could misunderstand”); Williams v. Taylor, 529 U.S. 362, 396
(2000) (citing the ABA Standards for Criminal Justice in determining that trial counsel did not properly fulfill their obligation to investigate defendant’s background); McCoy v. Court of Appeals of
Wis., Dist. 1, 486 U.S. 429, 436 n.8 (1988) (citing to the ABA Standards for Criminal Justice and to an Informal Opinion by the ABA
Standing Committee on Ethics and Professional Responsibility).
6
no better off than they were in state court, with no
meaningful opportunity to present their ineffective assistance claims.
The State contends that Martinez encourages prisoners and their lawyers to sidestep state court by
withholding ineffective assistance of counsel claims
during trial or state habeas proceedings, only to raise
them for the first time during federal habeas review.
The State offers no evidence to support this proposition, and the ABA is not aware of any either. Additionally, this gambit would likely subject the lawyer to professional discipline and other appropriate sanctions, in
part because lawyers have an ethical obligation to act
competently in their representation of a client, and
competent lawyers raise all possible claims at the earliest possible juncture and protect claims against waiver
and default. In the event of any attorney misconduct,
the correct solution is not to limit the equitable remedy
provided by Martinez, but to rely on the existing lawyer disciplinary system that protects against and sanctions violations of applicable rules of professional conduct. In any event, this Court does not interpret statutes to diminish remedies available to prisoners because of concern by a party about hypothetical gamesmanship in which the prisoner’s lawyer might engage.
ARGUMENT
I.
AN EVIDENTIARY HEARING IS NECESSARY TO FULLY
VINDICATE THE RIGHT TO COUNSEL
In a long line of cases that includes Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S.
458 (1938), and Gideon v. Wainwright, 372 U.S. 335
(1963), this Court has recognized a Sixth Amendment
right to counsel that is necessary to protect the funda-
7
mental right to a fair trial. Gideon recognized the “obvious truth” 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.” 372 U.S. 335, 344
(1963). And in Strickland v. Washington, the Court
further explained that “the right to counsel is the right
to the effective assistance of counsel” because ineffective assistance of counsel may “so undermine[] the
proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” 466 U.S. 668, 686 (1984). This Court emphasized
that the effectiveness inquiry is necessarily a context
and fact specific one, instructing courts to consider “all
the circumstances” and to “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case.” Id. at 690.
In Martinez v. Ryan, this Court reiterated that
“[t]he right to the effective assistance of counsel at trial
is a bedrock principle in our justice system.” 566 U.S.
1, 8-14 (2012). It is “the foundation of our adversary
system,” for “[d]efense counsel tests the prosecution’s
case to ensure that the proceedings serve the function
of adjudicating guilt or innocence, while protecting the
rights of the person charged.” Id. at 12. To vindicate
that right, counsel must “preserve[] claims to be considered on appeal … and in federal habeas proceedings.” Id. This Court recognized that a state prisoner,
whose first opportunity to raise an ineffectiveness of
trial counsel argument is in state post-conviction proceedings, can avoid procedural default under 28 U.S.C.
§ 2254 if he can show ineffectiveness of post-conviction
counsel. Id. at 8-14; see Trevino v. Thaler, 569 U.S. 413,
428 (2013) (extending Martinez to apply where state
law effectively, though not formally, denies most defendants a meaningful opportunity to present ineffec-
8
tive assistance of counsel claims on direct appeal); see
also Buck v. Davis, 137 S. Ct. 759, 771 (2017). Martinez
provides a narrow—but critical—pathway for prisoners
whose Sixth Amendment rights were violated at trial
and whose state post-conviction lawyers failed to raise
that claim due to a constitutionally ineffective lack of
skill, resources, or gross negligence.
As Martinez and its progeny make clear, a defendant should be provided “a meaningful opportunity to
present a claim of ineffective assistance of counsel.”
Trevino, 569 U.S. at 428. That is because “[t]he idea of
an entitlement to one untainted opportunity to make
one’s case is deeply embedded in our law.” Purkey v.
United States, 964 F.3d 603, 617 (7th Cir.), cert. denied,
141 S. Ct. 196 (2020). The Court has emphasized the
importance of ensuring that a defendant have a bona
fide “one and only appeal,” including where that opportunity for review comes for the first time in a state collateral proceeding. Coleman v. Thompson, 501 U.S.
722, 756 (1991) (“[W]here the merits of the one and only
appeal an indigent has as of right are decided without
benefit of counsel, we think an unconstitutional line has
been drawn between rich and poor.” (quoting Douglas
v. California, 372 U.S. 353, 357 (1963)). Martinez itself
relied on this principle, noting that “[w]hen an attorney
errs in initial-review collateral proceedings, it is likely
that no state court at any level will hear the prisoner’s
claim.” 566 U.S. at 10. The Court found that the outcome in such a case were the procedural default to apply—that “no court will review the prisoner’s claims”—
would be inequitable. Id. at 11, 14.
Ensuring one meaningful opportunity to bring
claims of ineffective assistance of counsel is critical because Sixth Amendment violations are discovered with
some frequency. Of particular concern, reversible error
9
occurs in a meaningful percentage of state death penalty
cases. A 2014 Department of Justice study found that
the conviction or sentence was overturned at some
stage of review in approximately 31.5 percent of deathpenalty cases, where the sentence was imposed in the
United States between 1973 and 2013.10 That figure
does not include reversals based on invalidation of the
State’s capital-punishment statute. Id. In the same
study published by the Department of Justice in 2020,
it was reported that just under 9% of all state prisoners
whose death sentences were removed in 2018 (the last
year of data reported in the study) had obtained a complete reversal of their capital conviction and sentence
from an appeals or higher court.11 Prisoners require an
opportunity to develop and supplement a record with
effective assistance of counsel. Martinez provides a narrow but meaningful pathway to relief for this subset of
prisoners whose ineffective assistance of trial counsel
claims are never considered in state court due to ineffective assistance of counsel in their state collateral proceeding. Arizona, for example, had “17 Martinez remands from the Ninth Circuit to reconsider ineffectiveassistance claims previously dismissed on procedural
10
See Bureau of Justice Statistics, U.S. Dep’t of Justice, Capital Punishment, 2013 – Statistical Tables 19, tbl. 16 (Dec. 19,
2014), https://bit.ly/3tSHZr9. In Arizona, the reversal rate in capital cases, including reversals based on invalidation of the capitalpunishment was 120 out of 307 (39%). See id. at 20, tbl. 17. For
state-specific studies, see, e.g., Baumgartner & Lyman, Louisiana
Death-Sentenced Cases and Their Reversals, 1976-2015, 7 J. of
Race, Gender, & Poverty 58, 67-68 (2016); Baumgartner, Rates of
Reversals in the North Carolina Death Penalty, U. N.C. Chapel
Hill (Mar. 22, 2010).
11
See Bureau of Justice Statistics, U.S. Dep’t of Justice, Capital Punishment, 2018 – Statistical Tables 16, tbl. 10 (Sept. 2020),
https://bit.ly/2XHdyIu.
10
grounds” between 2012 and 2017.12 This number shows
that the remedy recognized in Martinez is hardly overwhelming the courts with allegedly defaulted state-law
claims being pressed on habeas, but that it is nonetheless necessary to correct for rare circumstances where a
petitioner’s counsel on state collateral proceeding is ineffective in failing to raise an ineffective assistance of trial
counsel claim.
Numerous cases prove the wisdom of Martinez in
ensuring a fair system of habeas review and the opportunity for an evidentiary hearing. To take just one: In
2015, the Northern District of Florida granted Kevin J.
Sullivan’s habeas petition upon a finding that his trial
counsel was constitutionally ineffective by advising him
to reject a plea deal and concede guilt on possession
charges, and by defending his case at trial based on the
legally impermissible defense of voluntary intoxication,
which had been abolished five years prior. See Sullivan
v. Jones, No. 12-CV-250, 2015 WL 4756190, at *1, *21
(N.D. Fla. Aug. 11, 2015), aff’d, 837 F.3d 1195 (11th Cir.
2016).13 In large part, this decision turned on whether
12
See Arizona et al. Amicus Br. 2, Ayestas v. Davis, No. 166795 (U.S. Aug. 8, 2017), 2017 WL 3575763.
13
The court also found ineffective assistance of counsel during petitioner’s state collateral review proceeding based on that
attorney’s testimony at the evidentiary hearing. Id. at *10-16.
That lawyer testified that he was not aware Mr. Sullivan had been
offered a plea deal prior to trial and that he had never asked Mr.
Sullivan or the state attorney whether there had been a plea offer.
Id. at *10, *14. Indeed, he could not recall ever meeting with Mr.
Sullivan or speaking with him on the phone for any reason. Id. at
*14. The court appropriately found that this failure to investigate
amounted to constitutionally deficient representation. Id. at *16.
Thus, the court found that Mr. Sullivan had established cause under Martinez for his failure to raise his ineffective assistance of
trial counsel claim in his state collateral review proceeding. Id.
11
Mr. Sullivan or his attorney were, in fact, aware that
the defense had been abolished prior to trial. Id. at *21.
In finding to the contrary, the court relied extensively
on the testimony elicited from Mr. Sullivan and his trial
attorney at an evidentiary hearing. See id. at *16-22.
The court also relied on testimony at the evidentiary
hearing regarding the rejected plea deal itself, noting
that it was less than half the length of the 30-year sentence Mr. Sullivan received following trial. Id. at *2,
*15-17, *21. Absent the evidentiary hearing the court
required to adequately assess his claims—Mr. Sullivan
would never have been able to raise the plain inadequacy of his trial counsel’s advice, nor been able to challenge the additional years added to his sentence as a
result of his reliance on that advice.
As Sullivan demonstrates, access to an evidentiary
hearing on a § 2254 motion is critical to marshal and
present evidence. Without access to an evidentiary
hearing in federal court, prisoners are no better off
than they were in state court with no opportunity to
present their potentially meritorious ineffective assistance claims. “Claims of ineffective assistance” in particular “often require investigative work” to develop
facts that may not appear in the record or in the files of
ineffective prior attorneys. Martinez, 566 U.S. at 11.
Indeed, “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 (quotation marks omitted). Accordingly, “[a] claim
without any evidence to support it might as well be no
claim at all.” Gallow v. Cooper, 570 U.S. 933, 933 (2013)
(Breyer, J., respecting the denial of the petition for writ
of certiorari”).
12
It follows that, in pursuing the limited proceduraldefault exception this Court identified in Martinez and
Trevino—which is available only where, inter alia,
“‘there was no counsel’” in state habeas “‘or counsel in
that proceeding was ineffective,’” Trevino, 569 U.S. at
429 (quoting Martinez, 566 U.S. at 17)—federal habeas
counsel must investigate to identify “the information
necessary to substantiate the claim” not effectively
pursued below, id. at 424 (quotation marks omitted).
Indeed, “Martinez would be a dead letter if a prisoner’s
only opportunity to develop the factual record of his
state [collateral review] counsel’s ineffectiveness had
been in state [collateral] proceedings, where the same
ineffective counsel represented him.” Detrich v. Ryan,
740 F.3d 1237, 1246-1247 (9th Cir. 2013) (en banc) (plurality opinion); see also, e.g., McBride v. Glunt, No. 17CV-5374, 2020 WL 1953658, at *4 (E.D. Pa. Apr. 23,
2020) (evidentiary hearing necessary to determine
whether trial counsel may have had strategic reason for
declining to object to defective reasonable doubt jury
instruction); Carpenter v. Davis, No. 02-CV-1145, 2017
WL 2021415, at *1, *3 (N.D. Tex. May 12, 2017) (evidentiary hearing required where petitioner raising
Martinez had no previous opportunity to claim ineffective assistance of trial counsel who failed to “investigate and present,” inter alia, “evidence that [another
person] actually murdered the victim”); Sullivan, 2015
WL 4756190, at *10-22.
An adequate investigation by federal habeas counsel is especially critical where, as here, petitioner’s
claim is that his prior counsel conducted an inadequate,
unreasonably narrow investigation. See, e.g., Wiggins
v. Smith, 539 U.S. 510, 534, 538 (2003) (counsel’s inadequate investigation did not reflect reasonable professional judgment and prejudiced the defendant at sen-
13
tencing); see also ABA Guidelines, Guideline 1.1 cmt. at
933 (2003) (“Like trial counsel, counsel handling state
collateral proceedings must undertake a thorough investigation into the facts surrounding all phases of the
case.”). In many such cases, fact development will be
necessary to allow prisoners to raise constitutional
claims for the first time.
II. MARTINEZ DOES NOT ENCOURAGE PRISONERS AND
THEIR COUNSEL TO WITHHOLD CLAIMS AND EVIDENCE UNTIL FEDERAL HABEAS PROCEEDINGS
The State contends (at 37) that Martinez “encourag[es] prisoners to sidestep state court” by withholding
ineffective assistance of counsel claims during trial or
state habeas proceedings, only to raise them for the
first time during federal habeas review. The State offers no evidence to support this proposition. Further,
the State ignores that the consequences of this gambit
would not be relief for the habeas petitioner, but instead would likely subject the lawyer to probable professional discipline, including risk of their livelihood
through suspension, as well as other sanction. Moreover, it would be anathema to the Sixth Amendment’s
guarantees and to our justice system to diminish the
remedy available to prisoners because of unsupported
concern by the State about hypothetical gamesmanship
in which his lawyer might engage.
First, and of note, the State fails to identify a single
case in which an attorney made the purposeful, highrisk decision to not bring a claim in state court, gambling that the lawyer for the client in the federal habeas
proceeding would be able to get the claim before the
federal court through the Martinez gateway. Instead,
the State’s position depends on a partial dissent from
the Ninth Circuit, see Br. 37 (citing Dickens v. Ryan,
14
740 F.3d 1302, 1328 (9th Cir. 2014) (Callahan, J., dissenting in part)), and a training document created by a
single attorney in 2008, before Martinez was even decided, which in no way advises attorneys to withhold a
claim in state court until federal habeas proceedings,
see id. By contrast, the ABA Guidelines, which are “a
feature at every defense-training seminar,” advise repeatedly and emphatically that claims should be raised
and evidence presented at the earliest possible opportunity.14 The ABA—which represents lawyers with
experience in federal habeas proceedings and capital
punishment litigation—is not aware of evidence that
this type of unethical attorney misconduct arises either.
Thus, a critical premise of the State’s argument—that
this Court should intervene to prevent attorneys from
intentionally and unethically sidestepping state court—
is a solution in search of a problem.
The State’s unfounded concern that attorneys will
intentionally withhold claims in state court also ignores
the fact that lawyers are constrained by professional
conduct rules and standards and are subject to discipline for violations of the rules of conduct adopted in
the jurisdiction(s) in which they are admitted and/or
authorized to practice. As this Court explained in
Strickland, defense lawyers are obligated by their clients’ Sixth Amendment rights to provide effective assistance of counsel. See 466 U.S. at 685. A lawyer owes
the client a duty of objectively reasonable performance,
and “[p]revailing norms of practice as reflected in
American Bar Association standards and the like … are
guides to determining what is reasonable.” Id. at 688689.
14
Maher, Improving State Capital Counsel Systems Through
Use of the ABA Guidelines, 42 Hofstra L. Rev. 419, 422 (2013).
15
If a post-conviction lawyer representing a client in
the state proceeding were to make the purposeful,
high-risk decision to not bring a claim in state court,
that lawyer acts outside the ABA’s Model Rules of Professional Conduct, the ABA Standards for Criminal
Justice, and the ABA’s Guidelines for the Appointment
& Performance of Defense Counsel in Death Penalty
Cases. For example, ABA Model Rule of Professional
Conduct 1.115 requires “[a] lawyer … [to] provide competent representation to a client,”16 and the ABA
Standards prescribe the “duty of candor toward the
court and others.”17 Any attorney who intentionally
withholds an ineffective assistance of counsel claim in
state court likely violates both of these foundational directives. Additionally, the ABA Standards state that
as soon as counsel becomes aware “after appropriate
investigation and legal research” that prior defense
counsel did not provide effective assistance, “new counsel should not hesitate to seek relief for the client.”18
Thus, an attorney representing a capital prisoner in his
or her post-conviction appeals must raise claims fully
and forcefully at the earliest practicable moment.
A critical role of any post-conviction lawyer is to
protect a client’s claims against waiver and default.
15
Every jurisdiction has adopted a version of Model Rule of
Professional Conduct 1.1. Thus, the duty of competence is ubiquitous.
16
Id. at R. 1.1 (2020) (“A lawyer shall provide competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.”).
17
ABA, Criminal Justice Standards, Standard 4-1.3 (4th ed.
2017).
18
Id. at Standard 4-9.6.
16
Under the State’s theory, post-conviction attorneys will
not merely fail to protect against waiver and default
but wish these outcomes for their clients. But the
ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases contain a “duty to assert legal claims” that requires counsel to consider all legal claims potentially available and
protect the client against waiver, default, or forfeiture.19 The same Guidelines include the “duties of postconviction counsel,” which call on post-conviction lawyers to “litigate all issues, whether or not previously
presented, that are arguably meritorious under the
standards applicable to high quality capital defense
representation” and “make every professionally appropriate effort to present issues in a manner that will
preserve them for subsequent review.”20 The Guidelines’ accompanying commentary further warns against
the danger of procedural default and the duty to raise
claims in a manner that preserves the issue, providing
that “trial counsel in a death penalty case must be especially aware not only of strategies for winning at trial, but also of the heightened need to fully preserve all
potential issues for later review.”21 A scheme to deliberately withhold a claim in state proceedings in the
hopes of having the claim heard in federal court would
directly conflict with this authority.
But even if attorney misconduct arises, the correct
solution is not to limit the equitable remedy provided
by Martinez. Rather, the existing lawyer disciplinary
system that protects against and sanctions violations of
19
20
21
ABA Guidelines, Guideline 10.8. (2003).
Id. at Guideline 10.15.1.
Id. at Guideline 10.8, cmt. at 1030.
17
applicable rules of professional conduct provides the
appropriate remedy for any unethical acts by the lawyer. See Application of Griffiths, 413 U.S. 717, 726-727
(1973) (“[O]nce admitted to the bar, lawyers are subject
to continuing scrutiny by the organized bar and the
courts. In addition to discipline for unprofessional conduct, the range of postadmission sanctions extends
from judgments for contempt to criminal prosecutions
and disbarment.”). The discipline system in the U.S. is
professionalized and well-equipped to handle such matters if and when they arise. The ABA’s Model Rules
for Lawyer Disciplinary Enforcement describe the
sanctions available for attorney misconduct. They include, among other things, disbarment, suspension,
probation, reprimand, admonition, restitution to persons financially injured, and disgorgement of all or part
of the lawyer’s or law firm’s fee.22 Because systems are
already in place, a limitation on the equitable remedy of
Martinez is not needed to control attorney behavior.
Second, the notion that this Court would interpret
a statute based on an unfounded, far-reaching, and illogical assumption about how bad actors might behave
is foreign to our legal system. All lawyers, as officers of
the court, are presumed to act ethically, including defense counsel and prosecutors. See Ex parte Garland,
71 U.S. 333, 378 (1866) (“[Attorneys] are officers of the
court, admitted as such by its order, upon evidence of
their possessing sufficient legal learning and fair private character … . In this court the fact of the admission of such officers in the highest court of the States to
which they respectively belong, for three years preceding their application, in regarded as sufficient evidence
22
ABA Model Rules for Lawyer Disciplinary Enforcement R.
10 (2020).
18
of the possession of the requisite legal learning, and the
statement of counsel moving their admission sufficient
evidence that their private and professional character
is fair.”); see also United States v. Cronic, 466 U.S. 648,
656 n.19 (1984) (“[T]he Sixth Amendment does not require that counsel do what is impossible or unethical.”).
Consistent with this presumption of good faith and
faithful execution of a lawyer’s duties, the Court should
not interpret a statute to resolve hypothetical concerns
such as those posited here by the State.
It would be particularly ironic to do so here. The
point of Martinez and Trevino is that a prisoner should
be spared the consequences of his ineffective trial and
state post-conviction counsel’s performance.
Constraining the remedies of a prisoner who meets the rigorous requirements of Martinez on the assumption that
his federal habeas counsel might also engage in misconduct is perverse; it leaves the prisoner no better off
than he was in state court and deprives him of even one
opportunity to meaningfully contest his guilt in federal
court.
Third, strategically, it would be indefensible to
withhold potentially meritorious claims or helpful evidence at trial or in state post-conviction proceedings, on
the distant hope of possibly reviving the claims under
Martinez. The Martinez pathway towards excusing a
procedural default—by Martinez’s own terms—is nothing more than a “narrow exception.” Martinez, 566
U.S. at 9. Martinez only applies to “the default of a
single claim—ineffective assistance of trial counsel—in
a single context.” Davila v. Davis, 137 S. Ct. 2058, 2062
(2017).
19
In short, “the Martinez test is not a simple one.”23
To access relief under Martinez, a petitioner must establish four elements concerning his or her defaulted
claim: (1) the claim of ineffective assistance of trial
counsel is “substantial”24; (2) the state post-conviction
counsel was ineffective or there was no post-conviction
counsel; (3) the state collateral review proceeding was
the “initial” review proceeding in respect to the ineffective assistance of trial counsel claim; and (4) state law
requires that the claim be raised in an initial-review
collateral proceeding. See Trevino, 569 U.S. at 414;
Martinez, 566 U.S. at 13-18. There are many tripwires
to obtaining access, such that “if a petitioner’s claim
was filed in federal court beyond the statute of limitations or in a successive petition, was defaulted on direct
or collateral appeal rather than at the initial collateral
proceeding, or was raised by a petitioner who never
sought state postconviction relief or declined representation when he did, the Martinez gateway to merits review remains closed.”25 Exacerbating this difficulty is
the fact that “many states have attempted to construe
23
Ellis, A Tale of Three Prejudices: Restructuring the “Martinez Gateway”, 90 Wash. L. Rev. 405, 407 (2015).
24
The first requirement is particularly difficult to satisfy because it requires a successful showing of ineffective assistance of
trial counsel under this Court’s well-established standard from
Strickland—deficient performance and prejudice. 466 U.S. at 687696. Strickland’s demanding standard is notoriously difficult to
win. See Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high bar is never an easy task.”); see also
Blume & Johnson, Gideon Exceptionalism?, 122 Yale L.J. 2126,
2138-2139 (2013) (describing Strickland as “a formidable obstacle
to defendants alleging that they were deprived of their Sixth
Amendment right to the effective assistance of counsel”).
25
King, Enforcing Effective Assistance After Martinez, 122
Yale L.J. 2428, 2432-2433 (2013).
20
Martinez in ways that limit their postconviction obligations.”26 “In sum, a petitioner must prove two ineffective assistance of counsel claims and be subject to a
procedural system comparable to the one described in
Trevino [and Martinez]” rendering “relief under Trevino [and Martinez] … both difficult and unlikely.”27
Because the Martinez gateway is so difficult to access, no lawyer could be said to make a reasoned strategic decision by withholding evidence in the hopes that
they will be able to avail themselves of Martinez. As
noted above, competent lawyers raise all possible
claims at the earliest possible juncture, given the overwhelming risk—and the drastic consequences—of procedural default. The incremental likelihood of getting
through the gateway cannot, in any circumstance, outweigh the value of early claim presentation, which preserves the claim for federal habeas review. The unethical gamesmanship hypothesized by the State requires
illogical assumptions about risk-reward incentives,
where an attorney must risk his license and his client’s
life, and the reward is a merits review in federal habeas, which has proven to be “no magic bullet.”28 No reasonable attorney would make this calculation with little
26
Primus, Effective Trial Counsel After Martinez v. Ryan:
Focusing on the Adequacy of State Procedures, 122 Yale L.J. 2604,
2618 (2013).
27
Law, Trevino v. Thaler: Falling Short of Meaningful Federal Habeas Corpus Reform, 105 J. Crim. L. & Criminology 499,
520-521 (2015).
28
King, 122 Yale L.J. at 2433.
21
to gain and everything to lose. Indeed, in this context,
“fortune disfavors the bold.”29
Finally, even if, as the State incorrectly suggests,
the decision to withhold a claim in state court to raise it
for the first time in federal habeas could be considered
strategic, such a decision would not qualify as ineffective assistance of counsel under Strickland’s first prong
(deficient performance) and thus would not amount to
cause to excuse the default. In federal habeas proceedings, courts will not entertain claims that were procedurally defaulted, but procedural defaults can be excused by a showing of “cause and prejudice.” Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The cause and
prejudice necessary to overcome a procedural default is
satisfied by ineffective assistance of trial counsel. See
Martinez, 566 U.S. at 17. Therefore, even if this Court
were to indulge the State’s suggestion that an attorney’s decision to withhold a claim in state court in favor
of waiting to raise it in federal court amounts to constitutionally reasonable performance under the first
prong of Strickland, then procedural default would not
be excused, and the prisoner would not have the opportunity to later raise the ineffective assistance of counsel
claim in a federal habeas proceeding. Thus, if, as the
State argues, withholding a claim or evidence in state
court is a strategic decision by counsel, then the hypothetical gamesmanship scenario the State fears will
never arise in the first instance.
The State’s unfounded view of the practice of law
runs wholly contrary to longstanding professional ethics rules. This Court proceeds from an assumption of
29
Kovarsky, Delay in the Shadow of Death, 95 N.Y.U. L.
Rev. 1319, 1354 (2020) (analyzing stays in capital punishment litigation).
22
good faith about lawyers and their clients, and should
continue to do so here.
CONCLUSION
The Court should affirm the Ninth Circuit’s decision below.
Respectfully submitted.
REGINALD M. TURNER
ALAN E. SCHOENFELD
Counsel of Record
RACHEL E. CRAFT
AMERICAN BAR ASSOCIATION
JARED D. HOFFMAN
321 North Clark Street
ELEANOR C. DAVIS
WILMER CUTLER PICKERING Chicago, IL 60610
(312) 988-5000
HALE AND DORR LLP
abapresident@
7 World Trade Center
americanbar.org
250 Greenwich Street
New York, NY 10007
(212) 230-8800
URVASHI MALHOTRA
WILMER CUTLER PICKERING
HALE AND DORR LLP
2600 El Camino Real
Suite 400
Palo Alto, CA 94306
(650) 858-6000
SEPTEMBER 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.