Decision below: Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010)
Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first postconviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.
Keeping in mind that Wisconsin criminal-appeal procedure uniquely allows the defendant to raise an IAC claim as part of the direct-appeal process, this grant should be closely followed by all appellate attorneys. The background, stated very roughly: Martinez was convicted of sexually assaulting his step-daughter, in Arizona state court. He filed an appeal with benefit of counsel. Arizona procedure, like most if not all jurisdictions outside Wisconsin, requires an IAC claim to made only by application for “post-conviction relief” (PCR) – the equivalent of collateral attack, therefore not to be confused with a Wis. Stat. Rule 809.30(1)(c) “motion for postconviction relief,” despite the rhetorical overlap. Martinez’s appellate counsel, for reasons not apparent in the 9th Circuit decision or cert petition, filed a PCR application during the direct-appeal process and then treated it as a no-merit report: she informed the court that she could “find no colorable claims pursuant to” PCR procedure. Martinez supposedly was given an opportunity to respond to this assertion by filing a pro se PCR petition, but didn’t do so, and the state court dismissed the petition counsel had filed, thus ending the PCR process. (Martinez subsequently argued that he wasn’t fluent in English and neither authorized the PCR filing in the first place, nor understood his obligation to make a pro se filing in the second.) Then, with benefit of new counsel, he filed another PCR petition, asserting that trial counsel was ineffective in various respects. The state court held that the issue was procedurally defaulted, because it wasn’t raised in the first PCR petition. It now was time to wade deeply into the habeas thicket.
A state-court ruling of default presents a formidable obstacle to 2254 review, of course, but not always an insurmountable one. Default may be overcome if the petitioner shows “cause” and “prejudice” – the functional equivalent of an IAC claim with respect to the default. But effective assistance requires a right to assistance of counsel in the particular context. Martinez seeks to argue that his appellate attorney was ineffective for not pursuing the IAC claim against trial counsel. You have the right to counsel on direct appeal, of course, so it might seem clear that Martinez should be able to raise this argument. Alas, it is not that simple. While there is certainly the right to (effective) assistance on direct appeal, it is equally settled that no such right attaches to collateral attack. If Martinez did not have the right to counsel on the first PCR application then, no matter how badly it was botched, he’s out of luck. And that is just what the 9th Circuit held. Default may also be overcome if state procedure isn’t “adequate” to accommodate the supposedly defaulted argument. Does it matter that under Arizona procedure you can’t raise an IAC claim as part of the direct appeal, that the claim is reviewable only as a function of PCR review? Not according to the 9th. And so the Supreme Court will now decide whether either or both of these exceptions overcome the procedural bar.
Potential implications for the Wisconsin practitioner? In contrast to Arizona procedure, you can raise an IAC claim against trial counsel as part of the Rule 809.30, direct-appeal process. (As suggested, this is a unique, and uniquely beneficial, procedural mechanism, for which Howard Eisenberg, who drafted the rule more than 30 years ago, should be credited for his far-sightedness.) But appellate counsel therefore also faces a unique dilemma; you can raise IAC on direct appeal: does that mean you must? Not necessarily. You’re barred from raising an issue under § 974.06 absent showing a “sufficient reason” why you didn’t raise it on direct appeal. Turns out that ineffective assistance can support the “sufficient reason” showing. “It may be in some circumstances that ineffective postconviction counsel constitutes a sufficient reason as to why an issue which could have been raised on direct appeal was not,” State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 682, 556 N.W.2d 136 (Ct.App. 1996). (Put aside, for the moment, the court’s stilted not to say unmanageable distinction between “postconviction” and “appellate” counsel, State ex rel. Richard A. Ford v. Holm, 2004 WI App 22, ¶9 n. 4 (“(t)he terms are sometimes used interchangeably”); State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146, ¶21 (caselaw embodying these distinctions “collectively … create inconsistencies”), and id., ¶25 (although “the cases collectively create much confusion and delay,” the court of appeals lacks authority to overrule Rothering).) For present purposes, simply note the cert petition’s pitch (p. 12), “a defendant is ill-equipped to litigate an ineffective-assistance-of-trial-counsel claim without the assistance of post-conviction counsel — and such assistance is of little use if it is not effective,” and you’ll probably see the potential relevance of this case to the Wisconsin scheme. Note, as well, the relatively recent innovation in Wisconsin no-merit procedure, Rule 809.30(1)(g), which authorizes remand for evidentiary hearing on disputed facts raised by the defendant in response to the report; cf. State v. Allen, 2010 WI 89, ¶5 (“Allen’s § 974.06 motion is based entirely on issues that he could have raised in a response to his appellate counsel’s no-merit report,” therefore, serial-litigation bar applies).
Much more to it than that, and we invite (as always) your comments as to the implications.
