by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law and Lee Kovarsky, Professor of Law University of Maryland Francis King Carey School of Law. Professors Garrett and Kovarsky co-author a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, published by Foundation Press.
This week, in Davila v. Davis, the Supreme Court blocked a promising avenue for criminal defendants to enforce their rights to counsel. After Davila, when a state habeas lawyer forfeits an argument that an inmate was deprived of the constitutional right to appellate counsel, the inmate is out of luck. The holding came in a death penalty case, but the rule applies against noncapital defendants too.
The fact pattern was familiar: trial counsel objected to an unlawful jury instruction, but appellate and state habeas lawyers ignored the claim. And the instructional error was really important, because it likely allowed Davila to be convicted of capital murder based on insufficient evidence of intent. Texas permits the death penalty to be imposed for multiple intentional killings, and has a transferred intent rule providing that, in situations where someone trying to murder one person kills another, the killing is still “intentional.” Erick Davila killed two people, but the evidence strongly suggested that he had tried to kill only one person—who was not a victim. Davila means that, had the scenario involved trial counsel’s failure to challenge the instruction rather than appellate counsel’s failure to appeal the issue, the claim could be revived in federal court. But because appellate counsel made the mistake, it cannot.
What a mess.