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.
Davila needlessly adds increments complexity and hostility to a legal environment in which federal law already withholds remedies for serious constitutional violations. The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) makes it all but impossible for state inmates to obtain federal relief for any claim decided on the merits in state court. Claims that state lawyers forfeit are analyzed under the judge-made law of procedural default, which has generally been as unforgiving as AEDPA is. Recognizing that inmates were unable enforce their constitutional rights when states failed to provide legal assistance necessary to enforce it, the Court began to soften procedural default rules for right-to-counsel claims.
In Martinez v. Ryan (2012), the Supreme Court held that an inmate should have at least one meaningful chance to litigate whether his trial lawyer was ineffective under the Sixth Amendment. Martinez carved out an exception from a steady state of prior decisions erecting a virtually insurmountable bar to any claim forfeited by state habeas counsel. In Coleman v. Thompson, for example, the Court refused to permit federal courts to entertain the claims of a death sentenced inmate whose state habeas lawyers filed one day late. Coleman articulated the logic of the prevailing rule—because there was no constitutional right to a competent state habeas lawyer, Coleman had to suffer for his lawyers’ mistakes. Martinez carved out an equitable exception to Coleman (itself an equitable rule), permitting federal habeas claimants to revive substantial right-to-counsel claims forfeited by state habeas lawyers. Martinez reflected a basic on-the-ground reality. Lawyers do not litigate right-to-counsel violations against themselves, and they would be limited to the appellate record even if they tried to do so on direct appeal of the conviction. The first time the right to counsel can be realistically be enforced is in post-conviction proceedings, so giving federal effect to state forfeiture of right-to-counsel claims effectively destroyed the ability to enforce the underlying right. In Trevino v. Thaler (2013), the Justices again took a functional approach, concluding that Martinez applied the same way without respect to whether the state had enacted a formal statutory rule diverting right-to-counsel claims to post-conviction litigation.
This is already byzantine stuff, but with enormous practical implications. Davila amplifies the complexity, for reasons that seem more formal than functional. Martinez and Trevino were only about federal remedies for Sixth Amendment right-to-trial-counsel violations. Davila was about federal remedies for right-to-appellate-counsel violations. (The right to appellate counsel comes entirely from the Fourteenth Amendment, not from the Sixth.) In Davila, the state habeas lawyer failed to allege that the appellate lawyer had been constitutionally ineffective.
Davila declined to extend Martinez to include right-to-appellate-counsel claims, which remain incapable of being revived after forfeiture. The opening reason the Supreme Court gave was that Martinez, by its own terms, applied only in right-to-trial-counsel litigation. The observation that Martinez had to be extended before lower courts applied it to right-to-appellate-counsel scenarios was fair enough, but then things got confusing. The animating logic of Martinez—that right-to-counsel claims could not practicably be litigated on appeal—obviously applies in right-to-appellate-counsel scenarios. Right? Not according to Davila, which narrates Martinez and Trevino as necessary because states had made a “deliberate choice” to move the right-to-counsel litigation to post-conviction proceedings. According to Davila, the equitable rule was triggered because of the state’s “decision” to siphon the right-to-trial-counsel litigation to post-conviction proceedings. Because right-to-appellate-counsel litigation is conducted in state habeas proceedings because the very nature of the claim requires that approach, rather than because the State has in some sense “decided” to funnel the litigation there, the equitable concerns motivating Martinez do not apply. In this respect, Davila is absurd. As Justice Breyer pointed out in a dissent joined by Justices Ginsburg, Sotomayor and Kagan, “It makes no difference that the nature of the claim, rather than the State’s express rule,” makes state post-conviction proceedings the primary forum for seeking redress. (Davila’s distinction is also problematic on another level, as states “decide” to funnel right-to-trial-counsel claims to post-conviction proceedings because of the nature of those claims require it.)
Davila is also premised on pretty cramped view of how violations of the right-to-appellate-counsel happen. Davila assumes that the subject of the appellate scenario is always some sort of court action to which trial counsel is capable of objecting. If trial counsel objects and the appellate lawyer forfeits the issue, then at least the trial court has ruled on it. If trial counsel does not object and the appeals counsel fails to raise the issue, the argument goes, then the failure is no big deal; appellate counsel could not have cured trial counsel’s failure to object anyways. This logic is all sorts of wrong. First, ineffectiveness of appellate counsel is a constitutional violation that is entirely distinct from the underlying instructional error. Second, appellate counsel can obtain appellate relief for certain kinds of error not preserved in courts below—think “plain error” review. Third, Davila ignores that many right-to-appellate-counsel violations do not fit its modal scenario—most notably, constitutional violations that are discovered only when an appeal is pending.
The Davila opinions—the opinion of the Court (by Justice Thomas) and the dissent (by Justice Breyer)—devote lots of attention to the “floodgates” problem. The floodgates problem alludes to the slippery-slope concern that, by allowing federal habeas claimants to revive procedurally defaulted right-to-appellate-counsel claims, the Supreme Court would be dramatically increasing the resources necessary to process the federal habeas litigation. Floodgates concerns are neither substantiated nor disproven by available data; as a result the justices reason through the argument inferentially. The Court correctly surmises that the right-to-appellate-counsel rule would apply in every jurisdiction, whereas Martinez only applies in jurisdictions that force right-to-trial-counsel litigation into post-conviction proceedings.
There are nonetheless questions about how serious a problem that really is. Federal courts routinely decline to entertain all kinds of frivolous claims, so why would a frivolous Davila claim be any different? As to the concern that a Davila claim might unnecessarily force federal courts to familiarize themselves with the record—courts do that anyways. The Court waves off the point that a Davila claim would just be one among many in a petition, offering up the explanation that “we are not reassured by petitioner’s suggestion that extending Martinez would increase only the number of claims in each petition rather than the number of federal habeas petitions themselves.” The idea that there would be a substantial number of single-claim Davila petitions is wildly inconsistent with the data, which disclose that the average number of claims in capital habeas cases is twenty-eight. (In non-capital cases, where inmates are usually un-represented, the average was four.)
Although the law is baroque, it governs activity that essential to the enforcement of procedural rights and, in certain cases, the ascertainment of truth. The failure to provide adequate lawyers pervades every phase of the criminal process: investigation, plea bargaining, trial, appeals and habeas. Obviously, features of a well-functioning system might have to yield in light of statutory constraints, but watching the Court strain to withhold its equitable power to make the system work a little better does not make a whole lot of sense. The Court was not hemmed in by some authoritative source of positive law. Davila means that clients—even those facing the death penalty—are responsible for their lawyers’ failures, even where those failures are the predictable result of a state’s decision to under-fund criminal defense. There was nothing “strategic” about what Davila’s appellate counsel did, and the error goes to the basic question of whether he even committed a capital offense in Texas.
Perhaps Davila is most significant in terms of what it augurs for what one might call the Martinez project. At its most abstract, Martinez was motivated by a concern that under-resourced state post-conviction process prevented claims seeing the light of day—and by extension, frustrated the enforcement of important constitutional rights. Martinez was a fairly narrow doctrinal ruling, to be sure. It produced at least three clusters of questions, the answers to which would indicate how far the Court was really willing to go: (1) did Martinez’s emphasis on the right to counsel include the right to appellate counsel; (2) did its emphasis on the practical inability of inmates to enforce constitutional rights capable of being asserted only collaterally extend to rights other than the right to counsel; and (3) to what extent is the Court willing to police the use of complementary federal provisions, such as those pertaining to fact development, to choke Martinez litigation off before it starts. Davila indicates that the Martinez Project might be finished before it even got started.