By Brandon L. Garrett, a professor at the University of Virginia School of Law and Lee Kovarsky, an associate professor at the University of Maryland School of Law. Together they are writing a habeas corpus casebook, forthcoming next year from Foundation Press. Garrett is the author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Professor Kovarsky was a primary author of the American Bar Association’s Amicus brief in Martinez.
Last week, the Supreme Court’s two opinions requiring competent plea-bargaining counsel justifiably received considerable public and scholarly attention. A 7-2 decision in favor of the prisoner in a third case, Martinez v. Ryan, may nonetheless have a greater long-term impact on criminal process — with perhaps the most surprising outcome of the three. Martinez will improve the representation of prisoners at a downstream phase of criminal adjudication: during the murky process of state “post-conviction” review, often called “state habeas.”
An Arizona jury had convicted Louis Martinez of sexually abusing his eleven-year-old stepdaughter. His trial lawyer did not challenge DNA evidence the State presented, never called a rebuttal expert, and never objected to the prosecutor’s expert. Arizona — like many states — required Martinez to file his first Sixth Amendment challenge to the effectiveness of his trial lawyer in a state habeas proceeding. However, Martinez’s habeas lawyer filed a statement saying that Martinez had no viable Sixth-Amendment claim. After the time to file the claim elapsed, Martinez obtained a new lawyer, who filed a state habeas petition challenging the trial lawyer’s representation. The Arizona courts held that the claim had been forfeited. The lower federal courts also refused to consider the claim, citing to the state procedural default. (Federal habeas review is usually unavailable to a prisoner that has not complied with applicable state procedural rules.) In short, the inadequacy of his state habeas lawyer made it impossible for Martinez to enforce his right to an effective trial lawyer. The Supreme Court reversed, and held Martinez should have been given a chance to present the claim that his trial lawyer was ineffective. His inadequate representation excused his untimely state habeas filing.
What is state habeas review? It is a phase of criminal process that is usually sandwiched between direct state review of the conviction and federal habeas review. (We say “usually” because sometimes the direct review and state post-conviction phases overlap.) There is enormous variation in state post-conviction law, including the circumstances under which a prisoner is entitled to state post-conviction counsel. Prisoners must navigate an extraordinarily complex body of state criminal process either pro se or without a federal guarantee of effective representation. Moreover, some claims, such as ineffective-assistance-of-trial-counsel challenges, are not usually raised on appeal. The facts demonstrating a trial lawyer’s ineffectiveness usually lie outside the four corners of the trial transcript. Moreover, there is also often a conflict of interest on appeal — the trial lawyer and the appellate lawyer are often the same representative. State habeas process allows state courts to review the effectiveness of trial counsel without such problems, all before federal habeas process becomes necessary. Yet state habeas process, which usually produces nothing more than a summary order, is notorious for lacking procedural safeguards.