by Ben Tschirhart
Ten years ago, in Martinez v. Ryan, 566 U.S. 1 (2012), the U.S. Supreme Court confronted a dilemma posed by Congress’ passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996. That law subjects to procedural default any federal habeas corpus claims not already raised in a court. But since ineffective assistance of counsel (IAC) is not a claim that a defendant’s counsel is likely to raise at trial, the Court cracked open a door for prisoners to challenge their conviction, saying an IAC claim may be an excuse to forgive the procedural default that results from raising it. [See: PLN, Dec. 2014, p.44.]
However, on May 23, 2022, a new majority on the Court slammed that door shut.
Drawing a spirited dissent from the three liberal justices on the Court, its more conservative majority decided that a pair of condemned Arizona prisoners may be forgiven the procedural default resulting from their IAC claims, but they aren’t allowed to develop any evidence to support those claims.
The prisoners, David Ramirez and Barry Jones, both await execution after convictions for shocking murders. The convictions were upheld on direct review by the Arizona Supreme Court, in 1994 for Ramirez and three years later for Jones. Their petitions for habeas relief under 28 U.S.C. § 2554 accused their trial counsel of failing to conduct adequate investigations and their post-conviction counsel of failing to make a point of it.
Both petitioners’ claims were found in procedural default by the federal court for the District of Arizona because the underlying IAC claims had not been developed in state court. But both defaults were then excused or forgiven by the district court, which then denied Ramirez’s IAC claim but accepted the IAC claim from Jones.
Ramirez appealed, and the U.S. Court of Appeals for the Ninth Circuit reversed and remanded his case to develop his IAC claim. Arizona then appealed both that ruling and the district court’s decision in Jones’ favor, arguing that nothing in § 2554 allows a federal court to order evidentiary development that a defendant’s post-conviction counsel allegedly failed to do.
At the Supreme Court, Justice Clarence Thomas wasted no ink in the majority opinion on the contradiction an IAC claim presents under AEDPA. Rather, he noted first that the law makes the defendant prisoner responsible for his attorney and second, that there is no constitutional right to post-conviction counsel, as there is at trial. Thus “a prisoner is ‘at fault’ even when state postconviction … counsel is negligent,” Thomas concluded.
Agreeing then with Arizona’s assertion that federal courts may not consider any federal claims that have not been sufficiently developed at the state level, Thomas said he took Jones’ and Martinez’s claims — that their appellate counsel was inadequate for failing to claim IAC at their trials — and found them nearly outweighed by the stringent restrictions of § 2554, which prohibits federal habeas courts from considering evidence not presented in state court records. Tipping the scale in the state’s favor was AEDPA, which requires prisoners to “exhaust[t] the remedies available in the courts,” the Justice noted.
Coming down on the opposite side of the prisoners’ argument, Thomas quoted Harrington v. Richter, 562 U.S. 86 (2011), to focus instead on protecting federal habeas review from abuse as a “substitute for ordinary error correction through appeal.”
The Justice also said the majority’s decision would preserve “comity” between federal and state courts while avoiding “serial re-litigation of final convictions.” Such finality is “‘essential to both the retributive and deterrent functions of criminal law,’” Thomas continued, and to allow otherwise “‘intrudes on state sovereignty’” and damages the states’ ability to “enforce ‘societal norms through criminal law,’” quoting Calderon v. Thompson, 523 U.S. 538 (1998).
At last came the Justice’s big reveal: That he was afraid prisoners would get off easier on retrial. “‘When previously convicted perpetrators of violent crimes go free merely because the evidence needed to conduct a retrial has become stale or is no longer available, the public suffers, as do the victims,’” Thomas said, quoting Edwards v. Vannoy, 141 S. Ct. 1547 (2021).
Thus, the Court held that “a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on the ineffective assistance of state postconviction counsel.”
In a dissent joined by Justices Steven Breyer and Elena Kagen, Justice Sonia Sotomayor called the majority’s decision “perverse” and “illogical,” saying “[i]t makes no sense” to excuse a procedural default based on an IAC claim only then “to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of that trial-ineffectiveness claim.”
Sotomayor went on to say that the two cases show “the breakdown of the adversarial system caused by IAC,” which is “a violation of the Sixth Amendment.” The majority’s decision, she added, leaves two men to face prison or death “without any meaningful chance to vindicate their right to counsel.”
Arguing before the Court for Ramirez and Jones was attorney Robert M. Loeb of Orrick, Herrington & Sutcliffe LLP in Washington, DC. See: Shinn vs. Ramirez, 142 S. Ct. 1718 (2022).
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Related legal case
Shinn vs. Ramirez
|Cite||142 S. Ct. 1718 (2022)|