Less than a year after creating a narrow right to make a federal ineffective assistance of counsel claim in a post-conviction proceeding despite a procedural default in state court, the justices of the U.S. Supreme Court tried to carve out the contours of that ruling during oral arguments in Trevino v. Thaler.
The case stems from the capital murder conviction of Carlos Trevino in a Texas state court. During the sentencing phase, Trevino’s attorney did not present mitigating evidence for a reduced sentence, and Trevino was sentenced to death. Trevino sought habeas relief on a claim of ineffective assistance of counsel. The claim was denied and he sought habeas relief in federal court.
Trevino’s new appointed counsel investigated and found evidence that would have aided Trevino during the sentencing phase of the trial. Trevino moved to stay the federal habeas claim in order to return to state court to file a second habeas corpus application, claiming that his first attorney failed to adequately investigate his case. The state court denied the motion, saying the claim was procedurally barred because it was not raised in the first habeas petition. The federal court ultimately dismissed his ineffective assistance claim on the same grounds.
On appeal, the 5th U.S. Circuit Court of Appeals affirmed, holding that the state court claim was dismissed “on independent and adequate state grounds and is, thus, procedurally defaulted.”
The Supreme Court granted Trevino’s petition for certiorari.
Exception to the rule?
Last year, in the case Martinez v. Ryan, the court carved out an exception to the general rule barring post-conviction ineffective assistance claims after a procedural default. The court held that such claims still could be made when, in the initial-review collateral proceeding, counsel was absent or ineffective.
During oral arguments in Trevino’s case on Monday, Warren Wolf, a San Antonio criminal defense attorney representing Trevino, said the reasoning of Martinez should apply to cases like his, in which state law provides such tight deadlines for filing post-trial ineffective assistance claims that it’s impossible to develop a record to make the argument.
“To say that it could be done is really an illusion,” Wolf argued.
Justice Anthony Kennedy asked Wolf to craft a solution that would not be too complicated to implement.
“How do you want us to formulate the rule if we write the opinion in your favor?” Kennedy asked. “If a State does not give [a] feasible means for expanding the record on direct review, then Martinez applies, [and] then we go through 50 States to see if that rule applies?”
Wolf said that some states already have mechanisms to prevent defendants from being shut out of ineffective assistance claims. The court could rule in the current case, he said, and other states could “compare themselves to the [decision] that would come out of this.”
Justice Samuel Alito Jr. also searched for a standard.
“Could you give us in a sentence or two the test that you would like us to apply?” Alito asked.
Wolf said Martinez should apply when state law “makes it impracticable in the vast majority of cases to raise the claim on direct appeal.”
“That really would require a case-by-case determination in every other state,” Alito said.
Texas Deputy Solicitor General Andrew Oldham argued that Texas law provides built-in procedures to make ineffective assistance claims beyond conviction. The defendant, he argued, is trying to get extra chances.
“Allowing the petitioner to assert cause on the basis of a second bite at the apple — a state habeas proceeding — would create an unwarranted and unworkable extension of Martinez.”
Justice Sonia Sotomayor asked about the strict procedural default timeline under state law.
“What do you do with the 75-day rule, which I think is absolute, which says if the court hasn’t ruled on the new trial within 75 days the matter ends?” Sotomayor asked.
Oldham said that the law rarely presents a problem.
“Many capital and noncapital prisoners have effectively brought their claims [within that] window,” Oldham said.
Justice Antonin Scalia asserted that the defendant was looking for a way to expand Martinez to fit his situation.
“There’s clearly no Martinez protection,” Scalia said. The defendant, he said, wants the court to “develop a new case, Martinez-plus, in which, even though there is technically the ability to raise [a claim at habeas review], the mere fact that the ability to raise it is not effective enough, should produce the same result that Martinez produced.”
A decision is expected later this term.