For the second time this month, the Court has granted certiorari in a case dealing with the right to counsel in collateral proceedings. The first case, Martinez v. Ryan (see my post here), concerns the constitutional right to counsel in a collateral proceeding in state court. The new case, Martel v. Clair (No. 10-1265), deals with the statutory right to counsel in a federal habeas case.
Here’s what happened. Convicted of murder and sentenced to death in state court, Clair filed a federal habeas petition. After discovery and an evidentiary hearing, Clair complained to the district court regarding the quality of his appointed federal public defender. It seems that Clair and his lawyer then patched up their relationship, but a couple months later Clair again wrote to the district court and asked for the appointment of substitute counsel to pursue new leads supporting an innocence claim. The district court denied the request in a brief order and, on the same day, denied all of the claims in the underlying petition. On appeal, the Ninth Circuit then vacated the judgment below on the ground that the district court had abused its discretion by failing to conduct further inquiry into Clair’s complaints about his public defender. The Supreme Court granted the state’s petition for certiorari yesterday.
At one level, the Ninth Circuit’s decision seems a very modest one that hardly warrants Supreme Court review.
After all, the Ninth Circuit has not spoken to the merits of the habeas petition or even found that Clair’s request for new counsel should have been granted. In a sense, its ruling could be seen as purely and narrowly procedural: a district court must conduct some kind of inquiry into a claim that habeas counsel is failing to pursue potentially significant new leads, rather than summarily rejecting such claims.
But the state sees much more at stake in Martel than simply a procedural requirement that habeas courts look into complaints about counsel, and I suspect the cert. grant is an indication that some of the justices share the state’s concerns.
As the state sees it, the Ninth Circuit’s ruling is necessarily bottomed on a statutory right to “meaningful assistance” under 18 U.S.C. § 3006A(c) (providing for appointment of counsel for indigents) and/or 18 U.S.C. § 3599(a) (providing for appointment of counsel for capital petitioners in habeas cases). The state is concerned that such a right would routinely spawn fresh rounds of post-conviction litigation, especially in capital cases, where defendants have a strong incentive to delay execution of their sentences. The concerns are exacerbated by the fact that the Ninth Circuit made no finding that Clair was prejudiced by the failure to grant his request for new counsel. The state sees in this a possibility that the statutory right to “meaningful assistance” is more generous than the constitutional right to “effective assistance” (which normally requires a demonstration of prejudice before relief is granted). Finally, the state is concerned that “failure-to-inquire” remands, as in Martel, create an opportunity for petitioners to add new claims in circumvention of the stringent limitations that normally apply to second or successive habeas petitions.
It seems to me that the statutory authorization for appointment of counsel must necessarily contemplate some minimal level of competence, and that the court appointing counsel has a duty to look into facially credible assertions that counsel is failing to perform at the required level. Still, it does strike me as odd that the Ninth Circuit would grant relief without regard to prejudice.