The U.S. Supreme Court has issued a flurry of habeas corpus decisions in the past two weeks. The habeas petitioner won in two of the cases and lost in the third. There are no blockbusters in the group, but habeas fans may find hope in two of the decisions that long-awaited breakthroughs may be in the works.
One that will be welcomed by habeas fans is McQuiggin v. Perkins (No. 12-126). Perkins was convicted of murder in state court, with the judgment becoming final in 1997. More than eleven years later, Perkins filed a federal habeas corpus petition, alleging that he received unreasonably poor representation by his trial counsel. The petition plainly violated the one-year statute of limitations for habeas petitions, but Perkins sought to get around the statute by presenting evidence that he was actually innocent of the crime of which he was convicted. The Supreme Court has long recognized that actual innocence is an exception to the procedural default rule, which normally bars federal courts from considering habeas claims that were not timely raised in state court. Perkins argued that there should also be an actual-innocence exception to the statute of limitations, and the Supreme Court agreed in a 5-4 decision.
Does this new exception threaten to eviscerate the statute of limitations?
Hardly. The Court emphasized the very high standard that a petitioner must satisfy in order to show actual innocence: “The . . . exception , we underscore, applies to a severely confined category: cases in which new evidence shows it is more likely than not that no reasonable juror would have convicted the petitioner.” Indeed, while remanding to the Sixth Circuit for further proceedings, the Court went out of its way to indicate its view that Perkins had not satisfied the actual-innocence standard.
In truth, as Justice Scalia argued in dissent, it is hard to see in the statute any basis for the new exception. McQuiggin is perhaps best understood against the backdrop of the Court’s long struggle to deal with claims of innocence in the habeas context. Habeas is supposed to be a forum for vindicating constitutional rights, and it is not immediately clear that punishing an innocent defendant violates any provision of the Constitution. Indeed, the Court has steadfastly avoided squarely accepting or rejecting the existence of a “stand-alone” innocence claim in habeas. However, the strained legal reasoning in McQuiggin seems to reflect the Court’s unwillingness to let procedural obstacles prevent federal courts from reaching the merits in cases presenting serious claims of innocence. It seems likely that this desire to ensure that habeas courts have the power to correct wrongful convictions will, sooner or later, lead the Court finally to endorse the long-awaited stand-alone actual innocence claim.
A second case offering hope to habeas petitioners is Trevino v. Thaler (No. 11-10189). The long-simmering background issue in this case is whether there is a constitutional right to counsel (and hence to effective assistance of counsel) in collateral proceedings challenging state-court convictions. Trevino was convicted of murder in state court in Texas and sentenced to death. His direct appeals and a collateral challenge were unsuccessful. Then, in a second collateral attack, Trevino argued for the first time that his trial counsel had provided unreasonably poor representation by failing to investigate and present certain mitigating evidence that might have resulted in a lesser sentence. The state courts held that this claim was procedurally defaulted for not being raised earlier. As noted above, such a procedural default in state court normally precludes relief in federal court, too. However, there is another exception to the procedural default rule besides actual innocence; default may be avoided if a habeas petitioner can show “cause” and “prejudice” as to the default. In order to show cause, Trevino pointed to the incompetence of his first collateral counsel, who failed to present what has become a common claim in capital cases (that is, failure by trial counsel to develop an effective mitigation case).
The Court was long resistant to the suggestion that poor representation in a collateral proceeding might count as “cause” to excuse a procedural default. Since the Constitution does not guarantee a lawyer at all in collateral proceedings (in contrast to direct appeals) it has struck the Court as odd to recognize, even obliquely, any sort of a right to effective assistance at this stage. On the other hand, in light of the well-documented deficiencies of indigent representation in this country, critics have long argued that it is unfair to stick a defendant with an incompetent lawyer at trial and on appeal, and then to deny the defendant a fair opportunity to challenge that incompetent representation in collateral proceedings.
There was finally a modest breakthrough just a year ago in Martinez v. Ryan, in which the Court held that incompetent representation in a collateral proceeding could count as “cause” in excusing a failure to challenge the competence of trial counsel in a state in which the defendant is required to challenge trial counsel in a collateral proceeding.
Trevino was arguably distinguishable, though, because Texas did not formally limit Trevino to a collateral proceeding in order to challenge his trial counsel. However, the Court, again by a 5-4 margin, chose to expand the Martinez exception so that it also applies in states, like Texas, in which it is “virtually impossible” for an ineffective assistance claim to be presented on direct review. Important to the analysis was the tight time frames under Texas law for the direct review process and the reality that, in order to comply with the deadlines, ineffective assistance claims might have to be made by post-conviction counsel without even having the benefit of a trial transcript. It is not clear whether any other states with different post-conviction time frames might also be covered by Trevino’s extension of Martinez.
Despite the fact-specific nature of the holding, habeas fans might nonetheless see in Trevino (and Martinez before it) hopeful signs that the Court now better appreciates the extraordinary difficulties facing defendants who receive incompetent representation at trial and on direct appeal. Although neither Trevino nor Martinez expressly deals with a constitutional right to counsel in collateral proceedings – just an exception to the procedural default rule — these decisions may possibly indicate a willingness on the part of the Court to reconsider its earlier hard-line stance against a right to counsel after the first direct appeal.
But all is not looking up for habeas petitioners. The Court ruled against the petitioner in its third recent habeas case, Metrish v. Lancaster (No. 12-547). Burt Lancaster(!) was charged with murder in Michigan state court and presented a diminished-capacity defense at trial, but was convicted anyway. The conviction was later overturned and Lancaster retried. In between the two trials, the Michigan Supreme Court eliminated the diminished-capacity defense, which had previously been recognized by the state’s intermediate court of appeals but never by the high court. Lancaster was thus prohibited from presenting his defense at the retrial and was again convicted. On appeal, he argued unsuccessfully that retroactive application of the new Michigan Supreme Court decision violated his rights under the Due Process Clause.
Renewing the claim in federal court on habeas, Lancaster prevailed in the Sixth Circuit, but the U.S. Supreme Court reversed. The Court did not draw a bright-line rule on the retroactivity of state supreme court decisions, but emphasized the specific facts of the case, including that the state supreme court did not overturn any of its own precedents, but only the decisions of the intermediate court of appeals. The U.S. Supreme Court also relied on the deference that must be shown to state-court decisions under 28 U.S.C. §2254(d)(1), which limits habeas relief to circumstances in which a challenged state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”
Although the very case-specific analysis of Metrish has direct significance for very few, if any, other habeas petitioners, it does perpetuate the Court’s recent trend of emphasizing §2254(d)(1), which (as I discuss in this article) may be a double-edged sword for defendants: on the one hand, habeas petitioners face yet another challenging hurdle under this line of cases (on top of the procedural default rule, the statute of limitations, and so forth); on the other, a highly restrictive understanding of §2254(d)(1) may leave the Court feeling freer to develop constitutional protections in direct-review cases without the fear that doing so will spawn unmanageable waves of new habeas claims.