{"id":13630,"date":"2011-06-09T10:31:53","date_gmt":"2011-06-09T15:31:53","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13630"},"modified":"2011-06-09T10:33:14","modified_gmt":"2011-06-09T15:33:14","slug":"scotus-to-rule-on-right-to-counsel-in-collateral-proceedings","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/06\/scotus-to-rule-on-right-to-counsel-in-collateral-proceedings\/","title":{"rendered":"SCOTUS to Rule on Right to Counsel in Collateral Proceedings"},"content":{"rendered":"

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. \u00a0Earlier this week, however, the Court agreed to hear a case that will test how firm the distinction really is. \u00a0Martinez v. Ryan<\/em> (No. 10-1001) involves a state-court defendant\u2019s attempt to litigate a claim in collateral proceedings that he was\u00a0prohibited <\/em>from raising on direct appeal. \u00a0If he has no right to counsel in his collateral proceeding, then he has no right to counsel at all as to this issue.<\/p>\n

Here\u2019s what happened.<\/p>\n

<\/p>\n

Martinez was convicted in Arizona state court of sexual conduct with a minor. \u00a0The conviction was affirmed on direct appeal. \u00a0While the appeal was pending, Martinez\u2019s appellate counsel initiated collateral review in state court by filing a \u201cnotice of post-conviction relief.\u201d \u00a0However, counsel then filed a statement that she could find no colorable claim for post-conviction relief. \u00a0Martinez could then have filed a pro se petition, but he alleges that his counsel failed to inform him that he needed to do so. \u00a0After the time to file a petition expired, the trial court dismissed the collateral action.<\/p>\n

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\u2019s trial counsel had been unconstitutionally ineffective. \u00a0Arizona requires that ineffective assistance claims be brought in a collateral proceeding, but Martinez\u2019s petition was dismissed since he did not present the claim in the first proceeding.<\/p>\n

Martinez later tried federal habeas, but the district court found that his ineffective assistance claim was procedurally defaulted. \u00a0On 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. \u00a0Martinez is thus complaining of two separate layers of ineffectiveness, one by his trial counsel and one by his first post-conviction counsel.<\/p>\n

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. \u00a0It is the Ninth Circuit\u2019s rejection of such a right that is now before the Supreme Court. \u00a0More precisely, the Ninth Circuit held that there is no right to counsel in collateral proceedings; if there is no right to counsel, then <\/em>there can be no right to effective assistance of counsel.<\/p>\n

The seminal precedent in this area is\u00a0Douglas v. California<\/em>, 372 U.S. 353 (1963). \u00a0The rule from\u00a0Douglas<\/em> 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.<\/p>\n

The Court then distinguished\u00a0Douglas<\/em> in\u00a0Ross v. Moffitt<\/em>, 417 U.S. 600 (1974), rejecting a right to counsel in a discretionary appeal to a state supreme court. \u00a0The 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.<\/p>\n

The Ninth Circuit held that\u00a0Martinez<\/em> was controlled by\u00a0Ross<\/em>, not\u00a0Douglas<\/em>:<\/p>\n

In\u00a0Ross<\/em>, the petitioner had already received direct review of his convictions, and had already received the assistance of counsel in connection with that first appeal. \u00a0Likewise, here, Martinez has already received direct review of his conviction and received the assistance of counsel in connection with that appeal.<\/p><\/blockquote>\n

623 F.3d 731, 740 (9th Cir. 2010). \u00a0But 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.<\/p>\n

The court continued to draw the\u00a0Ross <\/em>analogy this way:<\/p>\n

Ross\u2019s<\/em> . . . analysis of second-tier review applies in the context of collateral review presented in this case. \u00a0Collateral review is more like a second-tier appeal than a first-tier appeal as of right. \u00a0Collateral 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. \u00a0Martinez does not face the same burden and disadvantages as a defendant pursuing direct review without the assistance of counsel.<\/p><\/blockquote>\n

Id<\/em>. at 741. \u00a0\u201dAlready benefitted from the assistance of counsel in a direct appeal\u201d \u2014 again, this misses the heart of Martinez\u2019s argument, which is that he did not and could not benefit from the assistance of appellate counsel with respect to his ineffectiveness claim.<\/p>\n

To me,\u00a0Martinez<\/em> seems closer to\u00a0Douglas<\/em>. \u00a0Ineffective assistance of trial counsel is \u2014 sadly \u2014 a critically important post-conviction issue in many cases. \u00a0If 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. \u00a0Moreover, in contrast to the second-tier review scenario discussed in\u00a0Ross<\/em>, the\u00a0pro se<\/em> defendant wishing to raise ineffective assistance for the first time in a collateral proceeding will not have the benefit of an attorney\u2019s earlier brief on the issue.<\/p>\n

Cross posted at Life Sentences Blog<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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. \u00a0Earlier this week, however, the Court agreed to hear a case that will test how firm […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,24],"tags":[],"class_list":["post-13630","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13630","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=13630"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13630\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=13630"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=13630"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=13630"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}