by Brian W. Stull, Senior Staff Attorney, Capital Punishment Project at the American Civil Liberties Union
Monday’s argument in Davila v. Davis involved a technical question of habeas corpus procedure: can a prisoner’s failure to raise the ineffectiveness of his direct appellate counsel in a collateral state post-conviction proceeding be excused by the ineffectiveness of the post-conviction lawyer? But the answer may turn on the more familiar judicial concern over opening floodgates. Some of the justices appeared concerned that the extension of Martinez v. Ryan and Trevino v. Thaler Davila proposed would do just that. To ground that discussion in facts, Justice Breyer asked for empirical data. While the advocates did not have ready answers at the lectern, answers were relatively easy to find at the computer.
Justice Breyer asked petitioner Davila’s attorney to “what extent has the Martinez claim proved a burden on Federal court? Is there any empirical information?” Counsel did not have a ready answer. Justice Breyer later asked the same of the Solicitor General of Texas, who repeated the figure of 3,800 cases, which Texas had previously cited in its Respondent’s Brief.
It is easy to reproduce this figure by searching on Westlaw for those district court decisions citing either Martinez or Trevino. Sure enough, the number is nearly exact (3,837). But spot checking of the 3,800 leads to at least three pertinent observations. First, not all cases citing one of the two decisions involved a claim under Martinez/Trevino. A court may cite Martinez or Trevino for a proposition stated within, without deciding a claim based on the decisions.