Petition for Writ of Certiorari — Paul E. Pavulak, Petitioner v. Warden, FMC Butner

Supreme Court briefJan 25, 2022

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No. 21-______

IN THE

Supreme Court of the United States

PAUL E. PAVULAK,

Petitioner,

vs.

WARDEN OF FEDERAL MEDICAL

CENTER-BUTNER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A

WRIT OF CERTIORARI

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

keith_hilzendeger@fd.org

Counsel for Petitioner

QUESTION PRESENTED

May a federal prisoner seeking review of a defaulted

claim of ineffective assistance of trial counsel seek

postconviction review under 28 U.S.C. § 2241, through the

escape hatch in 28 U.S.C. § 2255(e), when either the

absence or ineffective assistance of postconviction counsel

before the sentencing court is the reason for the default?

Put another way, may federal prisoners take

advantage of the equitable exception described for state

prisoners in Martinez v. Ryan, 566 U.S. 1 (2012), and

Trevino v. Thaler, 569 U.S. 413 (2013), on the ground that

absence or ineffective assistance of postconviction counsel

renders the § 2255 remedy “inadequate or ineffective to

test the legality of” a federal prisoner’s detention?

PARTIES TO THE PROCEEDING

The parties to the proceeding are listed on the cover

of this petition. The unnamed (and unknown) warden of

Federal Medical Center-Butner is substituted as

respondent in place of Barbara von Blanckensee pursuant

to Rule 35.3, Rule 35.4, and Rumsfeld v. Padilla, 542 U.S.

426, 435 (2004).

RELATED PROCEEDINGS

•

United States v. Paul Pavulak, No. 21-1571 (3d Cir.)

•

In re Paul Pavulak, No. 20-1640 (3d Cir.)

•

Paul Pavulak v. Barbara von Blanckensee, No. 1916314 (9th Cir. Aug. 4, 2021)

•

Paul Pavulak v. Barbara von Blanckensee, No. 4:19cv-274-TUC-RM (D. Ariz. May 31, 2019)

•

United States v. Paul Pavulak, No. 17-1878 (3d Cir.)

•

Paul Pavulak v. United States, No. 1:14-cv-290-LPS

(D. Del.)

•

Paul Pavulak v. United States, No. 12-9526 (U.S. Apr.

29, 2013)

•

United States v. Paul Pavulak, No. 11-3863 (3d Cir.)

•

United States v. Paul Pavulak, No. 1:09-cr-43-LPS

(D. Del.)

iii

TABLE OF CONTENTS

Question Presented ............................................................ i

Parties to the Proceeding ................................................. ii

Related Proceedings .......................................................... ii

Table of Authorities ........................................................... iv

Proceedings Below ............................................................. 1

Statement of Jurisdiction ................................................... 1

Constitutional and Statutory Provisions .......................... 1

Statement of the Case ........................................................ 6

Reasons for Granting the Writ ........................................ 10

1. The circuits are divided on whether federal

prisoners whose substantial claims of ineffective

assistance of trial counsel were defaulted by the

absence of postconviction counsel may obtain

review of those claims, and on what the

appropriate procedural vehicle for doing so

might be. ................................................................ 11

2. The Ninth Circuit’s decision here conflicts with

Martinez and Trevino. ......................................... 15

3. The question presented is important and

deserves this Court’s attention. .......................... 18

Conclusion .......................................................................... 22

Appendix

Opinion of the Ninth Circuit, Pavulak v. von

Blanckensee, No. 19-16314 (Oct. 1, 2021) ....................... 1a

Order of the District of Arizona,

Pavulak v. von Blanckensee, No. 4:19-cv-274-TUCRM (May 31, 2019) ............................................................ 6a

TABLE OF AUTHORITIES

Cases

Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020) ..................... 8

Apprendi v. New Jersey, 530 U.S. 466 (2000) .................. 6

Begay v. United States, 553 U.S. 137 (2008) .................. 21

Borden v. United States, 141 S. Ct. 1817 (2021) ............ 21

Buenrostro v. United States,

697 F.3d 1137 (9th Cir. 2012) ....................................... 9, 13

Coleman v. Thompson, 501 U.S. 722 (1991) ....... 11, 20, 21

Davila v. Davis, 137 S. Ct. 2058 (2017) .................... 13, 19

Douglas v. California, 372 U.S. 353 (1963) .................... 16

Gideon v. Wainwright, 372 U.S. 335 (1963) ................... 19

Glover v. United States, 531 U.S. 198 (2001) ................. 21

Gonzalez v. Crosby, 545 U.S. 524 (2005) ......................... 14

Halbert v. Michigan, 545 U.S. 605 (2005) ........................ 9

In re Marshall, 721 F.3d 1032 (9th Cir. 2013) ............... 18

Jackman v. Shartle, 535 F. App’x 87 (3d Cir. 2013) ...... 14

Johnson v. United States, 576 U.S. 591 (2015) .............. 21

Lee v. Watson, 964 F.3d 663 (7th Cir. 2020) ................... 14

Martinez v. Ryan, 566 U.S. 1 (2012) ..................... passim

Massaro v. United States, 538 U.S. 500 (2003) ....... 16, 20

Menendez v. Terhune,

422 F.3d 1012 (9th Cir. 2005) ........................................... 16

Pavulak v. United States,

248 F. Supp. 3d 546 (D. Del. 2017) .................................... 7

Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) ......... 17

Purkey v. United States,

964 F.3d 603 (7th Cir. 2020) ............................................. 14

Ramirez v. United States,

799 F.3d 845 (7th Cir. 2015) ............................................. 14

Taylor v. United States, 495 U.S. 575 (1990) ................. 21

United States v. Andrews,

75 F.3d 552 (9th Cir. 1996) ............................................... 16

United States v. Baptiste,

8 F.4th 30 (1st Cir. 2021) .................................................. 18

United States v. Dahl,

833 F.3d 345 (3d Cir. 2016) ............................................ 7, 8

United States v. Davila, 569 U.S. 597 (2013) ................. 14

United States v. Lee,

792 F.3d 1021 (8th Cir. 2015) ........................................... 15

United States v. Pavulak,

819 F. Supp. 2d 386 (D. Del. 2011) .................................... 6

United States v. Pavulak,

700 F.3d 651 (3d Cir. 2012) ................................................ 6

United States v. Singh,

979 F.3d 697 (9th Cir. 2020) ............................................. 16

United States v. Wheeler,

886 F.3d 415 (4th Cir. 2018) ............................................... 7

Weygandt v. Look,

718 F.2d 952 (9th Cir. 1983) (per curiam) ...................... 11

Statutes

8 U.S.C. § 1101 .................................................................. 21

8 U.S.C. § 1326 .................................................................. 21

18 U.S.C. § 16 .................................................................... 21

18 U.S.C. § 924 .................................................................. 21

18 U.S.C. § 2251 .............................................................. 6, 9

18 U.S.C. § 2426 .................................................................. 8

18 U.S.C. § 3006A ................................................. 11, 16, 20

18 U.S.C. § 3553 .................................................................. 7

18 U.S.C. § 3559 ........................................................ 6, 9, 21

28 U.S.C. § 1254 .................................................................. 1

28 U.S.C. § 2241 ....................................................... passim

28 U.S.C. § 2254 ................................................................ 20

28 U.S.C. § 2255 ....................................................... passim

Del. Code tit. 11, § 768 .................................................... 6, 7

Court Rules

9th Cir. R. 4-1 .................................................................... 16

Fed. R. Civ. P. 60 .................................................. 13, 14, 15

Sup. Ct. R. 10 ..................................................................... 19

Other Authorities

Administrative Office of the U.S. Courts,

Judicial Business 2020 .................................................... 10

Administrative Office of the U.S. Courts,

Just the Facts: Trends in Pro Se Civil Litigation

from 2000 to 2019 .............................................................. 10

Anti-Terrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 ...................... 17

Petitioner Paul Pavulak respectfully asks the Court to

review the decision of the United States Court of Appeals

for the Ninth Circuit in this matter.

PROCEEDINGS BELOW

The court of appeals’s decision is reproduced in the

appendix at page 1a and reported at 14 F.4th 895 (9th Cir.

2021) (per curiam). The district court’s decision denying

Mr. Pavulak’s pro se petition for a writ of habeas corpus

is reproduced in the appendix at page 6a and is not

reported.

STATEMENT OF JURISDICTION

The court of appeals issued its opinion in this case on

August 4, 2021. The court of appeals denied a timely filed

petition for rehearing on October 1, 2021. By order of

December 6, 2021 (No. 21A208), Justice Kagan extended

the time for filing the petition to and including January 31,

2022. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

28 U.S.C. § 2241:

(a)

Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective

jurisdictions. The order of a circuit judge shall be

entered in the records of the district court of the

district wherein the restraint complained of is had.

(b)

The Supreme Court, any justice thereof, and any

circuit judge may decline to entertain an

application for a writ of habeas corpus and may

transfer the application for

determination to the district

jurisdiction to entertain it.

(c)

(d)

hearing and

court having

The writ of habeas corpus shall not extend to a

prisoner unless—

(1)

He is in custody under or by color of the

authority of the United States or is committed

for trial before some court thereof; or

(2)

He is in custody for an act done or omitted in

pursuance of an Act of Congress, or an order,

process, judgment or decree of a court or judge

of the United States; or

(3)

He is in custody in violation of the Constitution

or laws or treaties of the United States; or

(4)

He, being a citizen of a foreign state and

domiciled therein is in custody for an act done

or omitted under any alleged right, title,

authority, privilege, protection, or exemption

claimed under the commission, order or

sanction of any foreign state, or under color

thereof, the validity and effect of which depend

upon the law of nations; or

(5)

It is necessary to bring him into court to testify

or for trial.

Where an application for a writ of habeas corpus is

made by a person in custody under the judgment

and sentence of a State court of a State which

contains two or more Federal judicial districts, the

application may be filed in the district court for the

district wherein such person is in custody or in the

district court for the district within which the State

court was held which convicted and sentenced him

and each of such district courts shall have

concurrent jurisdiction to entertain the

application. The district court for the district

wherein such an application is filed in the exercise

of its discretion and in furtherance of justice may

transfer the application to the other district court

for hearing and determination.

(e)

(1)

No court, justice, or judge shall have

jurisdiction to hear or consider an application

for a writ of habeas corpus filed by or on behalf

of an alien detained by the United States who

has been determined by the United States to

have been properly detained as an enemy

combatant or is awaiting such determination.

(2)

Except as provided in paragraphs (2) and (3) of

section 1005(e) of the Detainee Treatment Act

of 2005 (10 U.S.C. 801 note), no court, justice,

or judge shall have jurisdiction to hear or

consider any other action against the United

States or its agents relating to any aspect of the

detention, transfer, treatment, trial, or

conditions of confinement of an alien who is or

was detained by the United States and has been

determined by the United States to have been

properly detained as an enemy combatant or is

awaiting such determination.

28 U.S.C. § 2255:

(a)

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right

to be released upon the ground that the sentence

was imposed in violation of the Constitution or laws

of the United States, or that the court was without

jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized

by law, or is otherwise subject to collateral attack,

may move the court which imposed the sentence to

vacate, set aside or correct the sentence.

(b)

Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled

to no relief, the court shall cause notice thereof to

be served upon the United States attorney, grant a

prompt hearing thereon, determine the issues and

make findings of fact and conclusions of law with

respect thereto. If the court finds that the

judgment was rendered without jurisdiction, or

that the sentence imposed was not authorized by

law or otherwise open to collateral attack, or that

there has been such a denial or infringement of the

constitutional rights of the prisoner as to render

the judgment vulnerable to collateral attack, the

court shall vacate and set the judgment aside and

shall discharge the prisoner or resentence him or

grant a new trial or correct the sentence as may

appear appropriate.

(c)

A court may entertain and determine such motion

without requiring the production of the prisoner at

the hearing.

(d)

An appeal may be taken to the court of appeals

from the order entered on the motion as from a

final judgment on application for a writ of habeas

corpus.

(e)

An application for a writ of habeas corpus in behalf

of a prisoner who is authorized to apply for relief

by motion pursuant to this section, shall not be

entertained if it appears that the applicant has

failed to apply for relief, by motion, to the court

which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy

by motion is inadequate or ineffective to test the

legality of his detention.

(f)

(g)

A 1-year period of limitation shall apply to a motion

under this section. The limitation period shall run

from the latest of—

(1)

the date on which the judgment of conviction

becomes final;

(2)

the date on which the impediment to making a

motion created by governmental action in

violation of the Constitution or laws of the

United States is removed, if the movant was

prevented from making a motion by such

governmental action;

(3)

the date on which the right asserted was

initially recognized by the Supreme Court, if

that right has been newly recognized by the

Supreme Court and made retroactively

applicable to cases on collateral review; or

(4)

the date on which the facts supporting the claim

or claims presented could have been discovered

through the exercise of due diligence.

Except as provided in section 408 of the Controlled

Substances Act, in all proceedings brought under

this section, and any subsequent proceedings on

review, the court may appoint counsel, except as

provided by a rule promulgated by the Supreme

Court

pursuant

statutory

authority.

Appointment of counsel under this section shall be

governed by section 3006A of title 18.

(h)

A second or successive motion must be certified as

provided in section 2244 by a panel of the

appropriate court of appeals to contain—

(1)

newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would

be sufficient to establish by clear and

convincing evidence that no reasonable

factfinder would have found the movant guilty

of the offense; or

(2)

a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously

unavailable.

STATEMENT OF THE CASE

In 2009, a grand jury in the District of Delaware

indicted Mr. Pavulak on five counts, including attempted

production of child pornography, in violation of 18 U.S.C.

§ 2251(a) and (e). He took his case to trial, and was

convicted on all five counts. Under 18 U.S.C. § 3559(e),

and in light of Mr. Pavulak’s two prior convictions for

second-degree unlawful sexual conduct with a minor, in

violation of Del. Code tit. 11, § 768, the sentencing judge

imposed a mandatory life sentence. See United States v.

Pavulak, 819 F. Supp. 2d 386, 388 (D. Del. 2011). The

Third Circuit affirmed the sentence on direct appeal,

holding that § 768 did not “necessarily constitute a federal

sex offense” under § 3559(e)(1), but that the sentence did

not violate the jury-trial right as set forth in Apprendi v.

New Jersey, 530 U.S. 466 (2000), because his sentence did

not exceed the maximum set forth in 18 U.S.C. § 2251(e).

United States v. Pavulak, 700 F.3d 651, 672–75 (3d Cir.

2012), cert. denied, 569 U.S. 968 (2013).

In March 2014, Mr. Pavulak filed a pro se motion to

vacate, set aside, or correct sentence under 28 U.S.C.

§ 2255 with the sentencing court. Three years later, the

court denied the motion without a hearing and without

appointing counsel to assist him. See Pavulak v. United

States, 248 F. Supp. 3d 546, 551 (D. Del. 2017).

As relevant here, the sentencing court denied Mr.

Pavulak’s claim that his trial counsel was ineffective for

persuading him to stipulate to his two prior convictions

under § 768 at trial. “This argument is unavailing, because

it is premised on movant’s erroneous assumption that he

would not have been subjected to a life sentence but for

his stipulation to his prior qualifying convictions. The

sentencing transcript shows that the court found that a

life sentence was appropriate under the § 3553(a) factors

even without applying § 3559(e).” Pavulak, 248 F. Supp.

3d at 562.

On May 13, 2019, Mr. Pavulak filed the pro se petition

for a writ of habeas corpus under 28 U.S.C. § 2241 that is

involved here. In this petition, he contended that his

mandatory life sentence under § 3559(e) was illegal

because his prior convictions under § 768 did not qualify

as state sex offenses. He asserted that the district court

could consider this argument under the escape hatch of 28

U.S.C. § 2255(e) because it was not reasonably available

to his prior counsel, as demonstrated by the Third

Circuit’s decision in United States v. Dahl, 833 F.3d 345

(3d Cir. 2016). And he asserted that he was innocent of the

mandatory life sentence for the reasons set forth in

United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018).

Nearly three weeks later, without calling for a

response from the warden, the district court dismissed

Mr. Pavulak’s habeas petition, finding that he did not

qualify for the escape hatch. In the district court’s view,

Mr. Pavulak failed to show that he had not had an

unobstructed procedural shot at raising his claim before

the sentencing court because “the purported legal basis

for his claim was available during his first § 2255

proceeding.” The court observed that Dahl was decided in

August 2016, but the sentencing court did not dismiss his

§ 2255 motion until March 2017. It further observed that

Mr. Pavulak had asked to supplement his § 2255 motion to

include arguments based on Dahl. The court read the

sentencing court’s order denying Mr. Pavulak’s § 2255

motion as having rejected those arguments, even though

that order refers to neither Dahl nor to 18 U.S.C. § 2426,

as the district court said. Accordingly, the court

concluded, Mr. Pavulak had had an unobstructed

procedural shot at raising his claim before the sentencing

court, and so it lacked jurisdiction to entertain his § 2241

petition. The court dismissed Mr. Pavulak’s petition with

prejudice. It declined to issue a certificate of appealability.

Mr. Pavulak filed a pro se notice of appeal in the

district court and a motion for a certificate of appealability

with the court of appeals. In the wake of its decision in

Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), the court of

appeals certified the questions “whether the petition filed

by appellant in the district court is a legitimate 28 U.S.C.

§ 2241 petition brought pursuant to the escape hatch of 28

U.S.C. § 2255 and, if so, whether appellant is entitled to

relief.” (CA9 No. 19-16314 Dkt. #8) The court invited Mr.

Pavulak to apply for leave to proceed in forma pauperis

and for appointment of counsel. Mr. Pavulak did so, and

the court granted both requests.

With the assistance of appointed counsel, Mr. Pavulak

asked the court of appeals to vacate the dismissal without

prejudice and remand with instructions to grant leave to

amend. He asserted that his prior convictions did not

qualify him for the mandatory life sentence under

§ 3559(e) or for enhanced punishment under § 2251(e),

such that he met the actual-innocence prong of the escape

hatch under Allen. And he asserted that he could have

demonstrated to the district court, if it had notified him of

its intent to summarily dismiss his petition, that he had

not had an unobstructed procedural shot at raising his

sentencing challenge because the sentencing court did not

appoint counsel to assist him in litigating his § 2255

motion. That assertion asked the court to apply this

Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012), to

allow a federal prisoner to raise defaulted claims in a

habeas petition when either the district court declined to

appoint postconviction counsel for him, or postconviction

counsel rendered ineffective assistance. Cf. Martinez, 566

U.S. at 12 (“To present a claim of ineffective assistance at

trial in accordance with the State’s procedures, then, a

prisoner likely needs an effective attorney. The same

would be true if the State did not appoint an attorney to

assist the prisoner in the initial-review collateral

proceeding. The prisoner, unlearned in the law, may not

comply with the State’s procedural rules or may

misapprehend the substantive details of federal

constitutional law.”) (citing Halbert v. Michigan, 545 U.S.

605, 620–21 (2005)).

The court of appeals affirmed the district court in a per

curiam opinion. Citing Buenrostro v. United States, 697

F.3d 1137 (9th Cir. 2012), in which the court had held that

Martinez did not furnish a basis for filing a second or

successive § 2255 motion, the court said that it had

“already held that Martinez does not apply to federal

convictions.” (App. 3a) “Federal prisoners are not entitled

to counsel in postconviction proceedings,” the court

added. (App. 3a–4a) For a federal prisoner to use

Martinez to pass through the escape hatch would, the

court said, “open the door for virtually every unsuccessful

pro se petitioner under § 2255 to” seek habeas relief, and

thus “effectively overrule our precedent that there is no

right to counsel in federal post-conviction proceedings.”

(App. 4a) The court agreed with the Seventh Circuit’s

conclusion that Martinez is not available in § 2241

proceedings, and implicitly concluded that Martinez was

not available to any federal prisoner under Rule 60(b) of

the Federal Rules of Civil Procedure because “Martinez

does not apply to federal prisoners” at all. (App. 3a)

This timely petition followed.

REASONS FOR GRANTING THE WRIT

In fiscal year 2020, the federal district courts received

a total of 49,701 pro se prisoner petitions. 1 They received

6,834 motions to vacate sentence under 28 U.S.C. § 2255. 2

And they received 2,702 petitions for writs of habeas

corpus under 28 U.S.C. § 2241 from federal prisoners. 3 It

is safe to say that the vast majority of these postconviction

filings come from pro se prisoners—between 2000 and

2019, 91% of prisoner petitions filed in the district courts

were not prepared by a lawyer. 4 The Criminal Justice Act

Administrative Office of the U.S. Courts, Judicial Business

2020, Table C-13: Civil Pro Se and Non-Pro Se Filings, at

<https://www.uscourts.gov/sites/default/files/data_tables/jb_c13_09

30.2020.pdf>

Id., Table C-2A: Civil Cases Filed, by Nature of Suit, at

<https://www.uscourts.gov/sites/default/files/data_tables/jb_c2a_09

30.2020.pdf>.

Id., Table C-2: Civil Cases Filed, by Jurisdiction and Nature of

Suit, at <https://www.uscourts.gov/sites/default/files/data_tables/

jb_c2_0930.2020.pdf>.

Administrative Office of the U.S. Courts, Just the Facts: Trends

in Pro Se Civil Litigation from 2000 to 2019, Fig. 5, at

<https://www.uscourts.gov/news/2021/02/11/just-facts-trends-prose-civil-litigation-2000-2019>, then click on Fig. 5.

of 1964 gives the district courts the discretion to appoint

counsel for any indigent prisoner who is seeking

postconviction relief under both § 2241 and § 2255. See 18

U.S.C. § 3006A(a)(2)(B). They should do so whenever

there is some likelihood of success on the merits and the

pro se litigant appears unlikely to be able to articulate his

claims on his own in light of the complexity of those claims.

Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per

curiam). But if 91% of these litigants are proceeding

without counsel, either very many of their claims are

frivolous, or the district courts are routinely denying

federal prisoners seeking postconviction relief the ability

to present meritorious claims by failing to appoint counsel

to assist them as the Criminal Justice Act allows. This

petition thus presents the important and recurring

question about how to ensure that the federal district

courts do not allow meritorious postconviction claims

brought by federal prisoners to slip through the cracks by

being too stingy in exercising the discretion they enjoy

under the Criminal Justice Act to appoint counsel for

them.

1. The circuits are divided on whether federal

prisoners whose substantial claims of ineffective

assistance of trial counsel were defaulted by the

absence of postconviction counsel may obtain

review of those claims, and on what the appropriate

procedural vehicle for doing so might be.

In Coleman v. Thompson, 501 U.S. 722 (1991), this

Court held that an attorney’s negligence does not qualify

as cause to excuse a procedural default in state

postconviction proceedings. In Martinez v. Ryan, 566

U.S. 1 (2012), however, this Court recognized an equitable

exception to that holding. The Court held that where, by

virtue of the structure of a state’s procedural framework,

“claims of ineffective assistance of trial counsel must be

raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from

hearing a substantial claim of ineffective assistance at

trial if, in the initial-review collateral proceeding, there

was no counsel or counsel in that proceeding was

ineffective.” Id. at 17. The Court recognized that because

many state-court systems “move trial-ineffectiveness

claims outside of the direct-appeal process, where counsel

is constitutionally guaranteed, those states significantly

diminish prisoners’ ability to file such claims” and that a

defendant’s constitutional right to counsel—a “bedrock

principle in our justice system”—will be difficult, if not

impossible, to vindicate “[w]ithout the help of an adequate

attorney.” Id. at 11–13. But in Martinez the Court limited

its holding to state jurisdictions where ineffective

assistance claims are required to be raised during initial

collateral proceedings rather than on direct appeal.

The following year, the Court explained that

Martinez’s holding applied equally to jurisdictions in

which ineffective assistance of trial counsel claims were

not prohibited outright during direct appeal proceedings,

but where the state-court procedures made it “‘virtually

impossible for appellate counsel to adequately present an

ineffective assistance of trial counsel claim’ on direct

review.” Trevino v. Thaler, 569 U.S. 413, 423 (2013)

(citations omitted; cleaned up). The Martinez exception to

procedural default also applies where “state procedural

framework, by reason of its design and operation, makes

it highly unlikely in a typical case that a defendant will

have a meaningful opportunity to raise a claim of

ineffective assistance of trial counsel on direct appeal.” Id.

at 429. As in Martinez, in Trevino the Court focused on

the centrality of the effective assistance of trial counsel to

our criminal justice system and, correspondingly, the

importance of permitting prisoners a meaningful

opportunity to develop and present substantial claims of

ineffective assistance of trial counsel. See id. at 422–423;

see also Davila v. Davis, 137 S. Ct. 2058, 2066 (2017)

(“[T]he Court in Martinez was principally concerned

about trial errors—in particular, claims of ineffective

assistance of trial counsel.”).

But Martinez and Trevino, by their own terms, apply

only to ineffective-assistance-of-trial-counsel claims

brought by state prisoners. This Court has never applied

that framework to federal prisoners, let alone explained

what the proper procedural vehicle for airing such issues

might be. In the absence of guidance from this Court, the

courts of appeals have reached divergent answers to the

question.

In this case, the Ninth Circuit held that Martinez’s

equitable exception is simply not available to federal

prisoners. Martinez, the court of appeals said, “does not

apply to federal convictions.” (App. 3a (citing Buenrostro

v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012)))

Because federal prisoners are not entitled to counsel in

postconviction proceedings under § 2255, applying

Martinez to federal prisoners would “open the door for

virtually every unsuccessful pro se petitioner… to argue

that his lack of counsel in his original § 2255 petition

meant that he did not have an unobstructed procedural

shot at presenting his claim.” (App. 4a)

The Ninth Circuit’s rigid and inflexible rule would

prevent a pro se federal prisoner from seeking review in a

different forum (under § 2241) not only of the sentencing

court’s decision to deny postconviction relief on the merits

but also of any failure on its part to exercise statutory

discretion to appoint counsel to assist the prisoner in

litigating potentially meritorious claims. Not only that,

but it would likewise prevent the prisoner from seeking

review in the same forum (under Rule 60(b) of the Federal

Rules of Civil Procedure) of the sentencing court’s failure

to exercise statutory discretion to appoint counsel. Failing

even to exercise this statutory discretion undermines the

fundamental fairness of the § 2255 proceeding and thus

amounts to a structural defect in that proceeding. Cf.

United States v. Davila, 569 U.S. 597, 611 (2013);

Martinez, 566 U.S. at 14 (noting that absence of

postconviction counsel may not make the proceeding

“sufficient to ensure that proper consideration was given

to a substantial claim”). By asserting “some defect in the

integrity of” the previous § 2255 proceedings, seeking

such review under Rule 60(b) would not count as a

forbidden second or successive § 2255 motion. Gonzalez v.

Crosby, 545 U.S. 524, 532 (2005).

The Ninth Circuit implicitly acknowledged that its

holding conflicts with the Seventh Circuit’s holding that

Rule 60(b) furnishes an adequate vehicle for testing the

sentencing court’s failure to exercise its statutory

discretion to appoint postconviction counsel. The court

below said that its decision was in line with decisions of

the Third and Seventh Circuits that prevented federal

prisoners from relying on Martinez’s equitable exception

in § 2241 habeas proceedings. (App. 4a (citing Lee v.

Watson, 964 F.3d 663, 667 (7th Cir. 2020); Purkey v.

United States, 964 F.3d 603, 617–18 (7th Cir. 2020);

Jackman v. Shartle, 535 F. App’x 87, 89 n.5 (3d Cir.

2013))) But by foreclosing federal prisoners from relying

on Martinez in a Rule 60(b) motion, the court below

diverged from the Seventh Circuit’s holding in Ramirez v.

United States, 799 F.3d 845 (7th Cir. 2015), that allowed

federal prisoners to use Martinez in that way. (App. 4a)

In Ramirez the court saw no reason to treat federal

prisoners worse that state prisoners by affording the

latter a path around procedural default based on absence

of postconviction counsel but not the former. Id. at 854.

The Ninth Circuit’s decision in this case, by contrast,

makes federal prisoners worse off than their state

counterparts.

The Ninth Circuit’s decision is, however, in accord

with the Eighth Circuit’s decision in United States v. Lee,

792 F.3d 1021 (8th Cir. 2015). In that case, the Eighth

Circuit refused to permit a federal prisoner resort to Rule

60(b) under analogous circumstances. There, a federal

capital prisoner filed an initial § 2255 petition asserting

that his trial counsel was ineffective. His court-appointed

§ 2255 counsel, however, failed to present available

evidence to support his claim, and his petition was

dismissed for lacking evidentiary support. Lee filed a pro

se motion under Rule 60(b), arguing that under Martinez

and Trevino, he was entitled to one opportunity to present

his substantial claim of ineffective assistance of trial

counsel, but had been denied it by ineffective assistance of

§ 2255 counsel. The district court treated Lee’s Rule 60(b)

motion as a second or successive habeas petition and

dismissed it. The Eighth Circuit affirmed, holding that

Martinez and Trevino were “inapposite” to Lee, a federal

prisoner, because those cases “involved federal habeas

review of state court decisions under § 2254.” Id. at 1024.

2. The Ninth Circuit’s decision here conflicts with

Martinez and Trevino.

The Ninth Circuit’s decision contravenes this Court’s

decisions in Martinez and Trevino. Prisoners must have

at least one reasonable opportunity to challenge the

effectiveness of their trial counsel, especially where they

are serving illegally harsh sentences. Where a prisoner

must wait until initial-review collateral proceedings to

pursue an ineffective assistance of trial counsel claim that

has “some merit,” and where counsel at those initialreview proceedings is absent, the constitutional right to

effective assistance of trial counsel—“a bedrock principle

in our justice system”—will be difficult, if not impossible,

to vindicate. Martinez, 566 U.S. at 12–14; see also

Trevino, 569 U.S. at 428–429. That is the central premise

of this Court’s decisions in Martinez and Trevino.

A federal prisoner with substantial claims of

ineffective assistance of trial counsel, who lacked effective

assistance of initial-review collateral counsel, is in the

exact same position as the state prisoners in Martinez and

Trevino. In order to seek review of a conviction and

sentence in the customary manner, a federal prisoner first

files a direct appeal, where he is entitled to counsel. See

18 U.S.C. § 3006A(c); 9th Cir. R. 4-1(a); Menendez v.

Terhune, 422 F.3d 1012, 1027 (9th Cir. 2005) (citing

Douglas v. California, 372 U.S. 353 (1963)). But the

structure of the federal system precludes prisoners from

bringing adequately developed claims of ineffective

assistance of trial counsel on direct appeal. Indeed, the

federal courts of appeals have actively discouraged

federal prisoners from bringing those claims on direct

appeal. See United States v. Singh, 979 F.3d 697, 731 (9th

Cir. 2020) (“Generally, we will not entertain ineffective

assistance of counsel claims on direct appeal because the

record is often undeveloped ‘as to what counsel did, why it

was done, and what, if any, prejudice resulted.’”) (quoting

United States v. Andrews, 75 F.3d 552, 557 (9th Cir.

1996)).

A motion pursuant to § 2255 thus amounts to a federal

prisoner’s first real opportunity to raise claims of

ineffective assistance of trial counsel. See Massaro v.

United States, 538 U.S. 500, 508 (2003). But where that

proceeding is “undertaken without counsel,” the collateral

review proceeding “may not [be] sufficient to ensure that

proper consideration was given to a substantial claim” of

ineffective assistance of trial counsel. Martinez, 566 U.S.

at 14. That is because, as this Court recognized in

Martinez, ineffective assistance of trial counsel claims are

difficult if not impossible to mount “[w]ithout the help of

an adequate attorney.” Id. at 11–13. Yet, under the

constraints of § 2255, that is the only chance a federal

prisoner will get to present substantial claims of

ineffective assistance of trial counsel.

In the Antiterrorism and Effective Death Penalty Act

of 1996, Congress restricted the availability of “second or

successive” habeas petitions under § 2255 to situations

where the movant can point to either “newly discovered

evidence” that would undermine his conviction, or a new,

retroactive “rule of constitutional law… that was

previously unavailable.” 28 U.S.C. § 2255(h). But, in doing

so, Congress did not alter the escape hatch of § 2255(e)—

an implicit acknowledgment that § 2241 would be available

in some situations other than the two circumstances

identified in § 2255(h).

For a federal prisoner whose substantial claim of

ineffective assistance of trial counsel was not presented in

his § 2255 petition due to the absence of § 2255 counsel,

§ 2241 must be available. Under those circumstances,

because the court did not appoint counsel in § 2255

proceedings, the prisoner was denied “an opportunity to

bring his argument,” and thus the “‘remedy by motion’”

under § 2255 is “‘inadequate or ineffective’” to test the

legality of his detention. Prost v. Anderson, 636 F.3d 578,

584–585 (10th Cir. 2011) (Gorsuch, J.). This is not to say,

as the court below seemed to believe, that because the

prisoner was denied relief, § 2255 is ipso facto inadequate

or ineffective. Rather, denying the prisoner the assistance

of counsel at all means the denial even of an opportunity

to present substantial claims of ineffective assistance of

trial counsel. That is what renders the § 2255 remedy

inadequate or ineffective to test the legality of the

conviction and sentence. See id. Indeed, under those

circumstances (as here), no court will ever review the

prisoner’s substantial claims of ineffective assistance of

trial counsel, and he will die in prison despite having a

substantial claim that his mandatory life sentence is

illegally harsh.

Thus the Ninth Circuit incorrectly concluded that

Martinez’s equitable exception to procedural default, as a

gloss on the escape hatch’s statutory language in

§ 2255(e), is always unavailable to federal prisoners, no

matter what procedural vehicle they might try. Without

the assistance of counsel, it is impossible for pro se

prisoners to present substantial claims of ineffective

assistance of trial counsel in § 2255 proceedings. The

Criminal Justice Act of 1964 affords district courts the

discretion to appoint counsel to assist them in presenting

such claims. The principles articulated in Martinez and

Trevino require that federal prisoners have an

opportunity to seek review of the failure to exercise that

discretion in front of a judge who did not previously deny

them the assistance of counsel. Cf. United States v.

Baptiste, 8 F.4th 30, 35 (1st Cir. 2021) (explaining that it

is “especially difficult” to show an abuse of discretion

when the same judge hears a posttrial motion and the trial

itself because “substantial deference is due to” the judge’s

ruling); In re Marshall, 721 F.3d 1032, 1041–45 (9th Cir.

2013) (finding no abuse of discretion in a trial judge’s

decision not to recuse based on the judge’s own

assessment of an appearance of impropriety).

3. The question presented is important and deserves

this Court’s attention.

The effective result of the circuits’ disparate

approaches is that federal prisoners in some jurisdictions

who are denied the assistance of § 2255 counsel to assist

in presenting substantial claims of ineffective assistance

of trial counsel have no reasonable opportunity at all to

present those claims. Whether and by what procedural

mechanism such prisoners can press their ineffective

assistance of trial counsel claims is important and worthy

of this Court’s review, for at least three reasons: (1) the

importance of the right at stake; (2) the creation of an

unwarranted disparity between state and federal

prisoners; and (3) this issue is likely to recur in contexts

similar to how it arose here. See Sup. Ct. R. 10(c).

1. The right to effective assistance of trial counsel is

the “bedrock” of our criminal justice system. Martinez,

566 U.S. at 12; see also Davila, 137 S. Ct. at 2066–2067.

Without effective assistance of trial counsel, no defendant

can receive a fair trial. See generally Gideon v.

Wainwright, 372 U. S. 335, 344 (1963) (characterizing as

an “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”); see also Martinez,

566 U.S. at 12 (“[T]he right to counsel is the foundation for

our adversary system. Defense 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.”).

Equally true is the proposition that “the initial-review

collateral proceeding, if undertaken without counsel…,

may not [be] sufficient to ensure… proper consideration

[of] a claim of ineffective assistance of trial counsel.”

Martinez, 566 U.S. at 14. That is because “[c]laims of

ineffective assistance at trial often require investigative

work and an understanding of trial strategy.” Id. at 11.

Accordingly, as this Court has recognized, “[t]o present a

claim of ineffective assistance at trial…, a prisoner likely

needs an effective attorney.” Id. at 12. In the Criminal

Justice Act, Congress vested the district courts with the

discretion to appoint counsel to assist federal prisoners in

litigating postconviction cases. 18 U.S.C. § 3006A(a)(2)(B).

In so doing, Congress believed that the courts would

exercise their discretion to do so in appropriate case. But

if, as the statistics suggest, 91% of prisoner petitions filed

in federal district courts are prepared without the

assistance of counsel, there is reason to believe that this

discretion is systematically abused.

Without appointment of counsel to assist federal

prisoners in litigating substantial claims of ineffective

assistance of trial counsel, there is a serious risk that

those claims will never be reviewed by any court at all. It

was this very concern that motivated this Court in

Martinez and Trevino to create an equitable exception to

Coleman for state prisoners. Such a rule will result in

federal defendants serving illegally harsh sentences

without ever having a meaningful opportunity to test the

legality of their conviction and sentence, when that

conviction and sentence was tainted by the ineffective

assistance of trial counsel.

2. Federal prisoners who have been denied the

assistance of § 2255 counsel are in the exact same position

as the state prisoners who benefit from Martinez and

Trevino, as § 2255 proceedings are federal prisoners’ first

opportunity to raise ineffective assistance of trial counsel

claims. See Massaro, 538 U.S. at 508. Denying resort to

§ 2241 under analogous circumstances, then, creates an

unjustified distinction between state and federal

prisoners that unjustifiably disfavors the latter. Such a

distinction is particularly unwarranted because Congress

provided with respect to state prisoners that “[t]he

ineffectiveness or incompetence of counsel during Federal

or State collateral post-conviction proceedings shall not

be a ground for relief in a proceeding arising under section

2254,” 28 U.S.C. § 2254(i), but did not include any such

limitation in § 2255 for federal prisoners. And, unlike

federal habeas review of state prisoners’ defaulted claims,

permitting federal prisoners to raise in a § 2241 petition

substantial ineffective assistance of trial counsel claims

defaulted by ineffective § 2255 counsel presents no

intergovernmental comity concerns. Cf. Coleman, 501

U.S. at 726 (“This is a case about federalism.”).

3. This issue is important, given the number and

variety of recidivist sentence enhancements sprinkled

throughout the federal criminal code. Some of them are

generally applicable to all persons charged with federal

crimes, such as the three-strikes law that imposes a

mandatory life sentence for a third conviction for “2 or

more serious violent felonies” or “one or more serious

violent felonies and one or more serious drug offenses.” 18

U.S.C. § 3559(c)(1)(A)(i)–(ii). Others apply to certain

categories of offenders, but nevertheless constitute a

significant fraction of the criminal charges brought in

federal district courts throughout the country. Think of

the Armed Career Criminal Act, 18 U.S.C. § 924(e), a

frequent subject of litigation before this Court. E.g.

Borden v. United States, 141 S. Ct. 1817 (2021); Johnson

v. United States, 576 U.S. 591 (2015); Begay v. United

States, 553 U.S. 137 (2008); Taylor v. United States, 495

U.S. 575 (1990). Or of the multifaceted definition of the

term “aggravated felony,” 8 U.S.C. § 1101(a)(43), which

includes a “crime of violence,” see 8 U.S.C.

§ 1101(a)(43)(F) (incorporating the definition of the term

at 18 U.S.C. § 16), a prior conviction for which increases

the maximum punishment for illegal reentry from 2 to 20

years in prison, 8 U.S.C. § 1326(b)(2). Large classes of

federal prisoners are subject to these kinds of sentence

enhancements; those prisoners are entitled to the

effective assistance of sentencing counsel, see Glover v.

United States, 531 U.S. 198, 202–04 (2001); and, no less

than state prisoners, they should have at least one forum

open to hearing any substantial claim of ineffective

assistance of sentencing counsel that they might have.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,