Although the Supreme Court has long recognized that defendants have a right to counsel at the first level of direct appeal, the Court has thus far declined to extend this right to collateral post-conviction proceedings, such as habeas corpus. Earlier this week, however, the Court agreed to hear a case that will test how firm the distinction really is. Martinez v. Ryan (No. 10-1001) involves a state-court defendant’s attempt to litigate a claim in collateral proceedings that he was prohibited from raising on direct appeal. If he has no right to counsel in his collateral proceeding, then he has no right to counsel at all as to this issue.
Here’s what happened.
Martinez was convicted in Arizona state court of sexual conduct with a minor. The conviction was affirmed on direct appeal. While the appeal was pending, Martinez’s appellate counsel initiated collateral review in state court by filing a “notice of post-conviction relief.” However, counsel then filed a statement that she could find no colorable claim for post-conviction relief. Martinez could then have filed a pro se petition, but he alleges that his counsel failed to inform him that he needed to do so. After the time to file a petition expired, the trial court dismissed the collateral action.
Later, represented by new counsel, Martinez filed a new notice of post-conviction relief in state court and this time also filed a supporting petition, which alleged that Martinez’s trial counsel had been unconstitutionally ineffective. Arizona requires that ineffective assistance claims be brought in a collateral proceeding, but Martinez’s petition was dismissed since he did not present the claim in the first proceeding.
Martinez later tried federal habeas, but the district court found that his ineffective assistance claim was procedurally defaulted. On appeal, Martinez has argued that the claim should not be treated as defaulted because his first post-conviction counsel was ineffective for initiating and then abandoning the collateral proceeding without advising Martinez of what was going on. Martinez is thus complaining of two separate layers of ineffectiveness, one by his trial counsel and one by his first post-conviction counsel.
The Ninth Circuit determined that Martinez could not avoid the procedural default unless he had a constitutional right to effective assistance in the first collateral proceeding. It is the Ninth Circuit’s rejection of such a right that is now before the Supreme Court. More precisely, the Ninth Circuit held that there is no right to counsel in collateral proceedings; if there is no right to counsel, then there can be no right to effective assistance of counsel.
The seminal precedent in this area is Douglas v. California, 372 U.S. 353 (1963). The rule from Douglas is that if a state supplies appellate review, then the state must also provide counsel so as to avoid wealth-based inequalities in the ability of different defendants to make use of the appellate courts.
The Court then distinguished Douglas in Ross v. Moffitt, 417 U.S. 600 (1974), rejecting a right to counsel in a discretionary appeal to a state supreme court. The Court reasoned that, on a second tier of review, the defendant would benefit from the brief prepared by counsel at the first tier, thus diminishing the need for continued representation.
The Ninth Circuit held that Martinez was controlled by Ross, not Douglas:
In Ross, the petitioner had already received direct review of his convictions, and had already received the assistance of counsel in connection with that first appeal. Likewise, here, Martinez has already received direct review of his conviction and received the assistance of counsel in connection with that appeal.
623 F.3d 731, 740 (9th Cir. 2010). But this seems to miss the point: Martinez may have had counsel in his first appeal, but counsel was precluded from litigating ineffective assistance in that proceeding.
The court continued to draw the Ross analogy this way:
Ross’s . . . analysis of second-tier review applies in the context of collateral review presented in this case. Collateral review is more like a second-tier appeal than a first-tier appeal as of right. Collateral review and direct review are not on equal footing where, as here, a defendant has already benefitted from the assistance of counsel in a direct appeal. Martinez does not face the same burden and disadvantages as a defendant pursuing direct review without the assistance of counsel.
Id. at 741. “Already benefitted from the assistance of counsel in a direct appeal” — again, this misses the heart of Martinez’s argument, which is that he did not and could not benefit from the assistance of appellate counsel with respect to his ineffectiveness claim.
To me, Martinez seems closer to Douglas. Ineffective assistance of trial counsel is — sadly — a critically important post-conviction issue in many cases. If there is no right to counsel in litigating ineffective assistance, then wealthy defendants who can afford representation have a major advantage relative to indigent defendants. Moreover, in contrast to the second-tier review scenario discussed in Ross, the pro se defendant wishing to raise ineffective assistance for the first time in a collateral proceeding will not have the benefit of an attorney’s earlier brief on the issue.
Cross posted at MU Law Faculty Blog.