Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on May 16 and 23, 2022 (Part I); and cases granted review on May 16, 2022 (Part II).
Opinion: Shinn v. Ramirez, 20-1009
Shinn v. Ramirez, 20-1009. In a 6-3 opinion, the Court held that “under [28 U.S.C.] §2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” In separate cases, David Ramirez and Barry Jones were sentenced to death for murder, and the Arizona Supreme Court affirmed their convictions and sentences. Both men instituted state postconviction relief proceedings, but they did not raise certain claims of ineffective assistance of trial counsel in a timely manner. In federal habeas litigation, the Ninth Circuit held that these procedural defaults were excusable under Martinez v. Ryan, 566 U.S. 1 (2012), because the state postconviction attorneys themselves were ineffective by failing to raise those claims. Despite the limitations imposed by §2255(e)(2), the court held that the habeas court could hear evidence that had not been presented to the state courts, and that such evidence could be considered both to excuse the procedural default and on the merits of the underlying claim against trial counsel. The Court reversed in an opinion by Justice Thomas.
The Court reiterated the general rule that federal habeas courts may not consider evidence that was not presented to the state courts. This rule acknowledges the states’ “core power to enforce criminal law” and the degree of intrusion on state sovereignty that habeas review entails. Because habeas review is an “extraordinary remedy” against “extreme malfunctions in the state criminal justice systems,” the Court and AEDPA have imposed limits on its availability, including the doctrine of exhaustion and procedural default. Despite these rules, a federal habeas court can forgive a procedural default if a prisoner provides an adequate excuse. Under Coleman v. Thompson, 501 U.S. 722 (1991), a default may be excused if the prisoner demonstrates “cause for the default and actual prejudice as a result of the alleged violation of federal law.” In this context, “cause” means that something external to the prisoner impeded his efforts to comply with the state procedural rule. In proceedings for which the Constitution does not guarantee the assistance of counsel, attorney error generally does not qualify as “cause.”
The Court recognized a “narrow exception” to this rule in Martinez v. Ryan and Trevino v. Thaler, 569 U.S. 413 (2013), where it held that ineffective assistance of state postconviction counsel may in some cases constitute cause to forgive a default. But under §2254(e)(2), if a prisoner “failed to develop the factual basis of a claim in State court proceedings,” federal courts “shall not hold an evidentiary hearing on the claim” unless the claim relies on (1) a new, retroactive rule of constitutional law, or (2) a factual predicate that could not have been previously discovered through due diligence. If a prisoner can satisfy either exception, he still must show that further factfinding would demonstrate that no reasonable factfinder would have convicted him. Even then, whether to permit new evidence is a discretionary decision that “must be informed by principles of comity and finality that govern every federal habeas case.”
The Court rejected the argument that a prisoner is not at fault for purposes of §2254(e)(2) for his postconviction counsel’s negligence. Cases such as Coleman, Holland v. Jackson, 542 U.S. 649 (2004) (per curiam), Williams v. Taylor, 529 U.S. 420 (2000), and Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), make clear that, since there is no constitutional right to counsel in state postconviction proceedings, a prisoner generally must bear the risk for counsel’s failures during those proceedings, including a failure to develop the factual record. The Court declined to extend the narrow Martinez exception to cases where postconviction counsel fails to develop the factual record. Martinez was an exercise of the Court’s “equitable judgment,” but AEDPA expressly forbids evidentiary hearings to develop the factual basis of a claim. The Court could not square the prisoners’ proposed result with the statutory language or pre-AEDPA precedent; and it noted that the proposed rule could not be limited to claims of ineffective assistance of trial counsel. Finally, Martinez itself noted that state prisoners often need evidence outside the trial record to support their claims, yet the Court was “unusually explicit” about the narrowness of its decision. The “wholesale relitigation of Jones’ guilt” in a 7-day hearing in federal court illustrated the improper burden the proposed rule would impose on states.
The Court also rejected the prisoners’ interpretation of §2254(e)(2). The prisoners argued that because the statute bars an evidentiary hearing on “the claim,” it permits an evidentiary hearing to determine whether there is cause to excuse the procedural default under Martinez. The prisoners would then use any evidence adduced for that purpose to evaluate the merits of the underlying claim. The Court was skeptical of the first point, and it found that the second point would create an “obvious . . . end-run around the statute” that was foreclosed by Holland. The prisoners argued that Holland largely nullifies Martinez hearings because there is no point in developing a record on the issue of cause if the court cannot later consider that evidence on the merits. The Court agreed that any such hearing would serve no purpose, but “that is a reason to dispense with Martinez hearings altogether, not to set §2254(e)(2) aside.”
Justice Sotomayor dissented, joined by Justices Breyer and Kagan. Justice Sotomayor observed that Ramirez and Jones both had viable trial-ineffectiveness claims that their postconviction attorneys did not pursue. She argued that the majority “all but overrules” Martinez and Trevino and reduces federal courts’ authority to safeguard the right to effective assistance of trial counsel. “It makes no sense to excuse a habeas petitioner’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings, as Martinez and Trevino did, but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim.” Justice Sotomayor argued that neither AEDPA nor precedent required such a “perverse” and “illogical” result. She further argued that the majority put too much weight on the dissenting opinions in Martinez and Trevino, and that it overemphasized states’ interests in finality and federalism over a criminal defendant’s constitutional rights.
Justice Sotomayor wrote that the prisoners’ procedural default would be excused under Martinez and Trevino; the question is whether a prisoner can be faultless under Martinez yet barred by §2254(e)(2) from seeking an evidentiary hearing in federal court. According to the dissent, Congress enacted AEDPA against the backdrop of Coleman, which recognized that attorney error could, in certain circumstances, be seen as an external factor that is not imputed to the prisoner. And Williams shows that AEDPA incorporates a fault-based standard where prisoners are only barred from presenting new evidence if they―not their attorneys―were responsible for the negligent act or omission in state court. When trial counsel’s assistance can only be judged in postconviction proceedings, ineffective assistance by postconviction counsel forecloses meaningful review of the constitutional right to effective trial counsel. Accordingly, postconviction counsel’s ineffectiveness cannot fairly be attributed to the prisoner, and the prisoner therefore has not “failed to develop the factual basis of [his] claim” under §2254(e)(2).