When Just Right is Unjust: Goldilocks Jurisprudence and the Right to Counsel in Post-Conviction Appeals

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By Hugh Mundy

During its October 2011 term, the Supreme Court issued two well-publicized decisions severely curtailing the already tenuous Fourth Amendment rights of the accused and incarcerated.  First, in Howes v. Fields, the Court held that prisoner interrogations held “in private” about “events occurring outside the prison” do not require Miranda warnings.  In addition, in Florence v. Board of Chosen Freeholders, the Court sanctioned jailhouse strip searches of arrestees without reasonable – or any – suspicion of criminal activity.  Even as the Court further eviscerated the Fourth Amendment rights of those in custody, two other rulings, Maples v. Thomas and Martinez v. Ryan, extended the Sixth Amendment right to counsel for incarcerated litigants.  Still, unlike the obvious damage to prisoner’s rights wrought by the Fourth Amendment cases, the utility of the Maples and Martinez for inmates seems murky at best.

In Maples, the Court held that a death row inmate established good cause to excuse his failure to move for post-conviction relief after his lawyers missed a filing deadline in state court. While the case made headlines as Maples’ pro bono attorneys hailed from the prestigious New York firm of Sullivan & Cromwell, its precedential value appears limited.  Indeed, in determining that Maples demonstrated good cause for his delinquency, the Court narrowly tailored its ruling to the unique case facts surrounding the botched appeal.  Those “unusual and extraordinary circumstances” included a “mail room mix-up” at Sullivan & Cromwell, a failure by Maples’ local counsel to file a notice of appeal, and an admission by Maples’ trial attorneys that they “were stumbling around in the dark” during the sentencing phase of his trial.  In a concurring opinion, Justice Alito noted that Maples was entitled to relief due to the “perfect storm of misfortune” that engulfed his appeal.

Martinez, by contrast, received comparably little media attention.  The case may have been overlooked because it deals, in large part, with complicated state procedural rules governing access to federal habeas corpus review.  As a result, the opinion is not easily reduced to sound-bites or headlines.  More likely, Martinez’ low profile stems from the Court’s half-hearted ruling on the right-to-counsel issue.  While the Court held that Martinez was entitled to the effective assistance of counsel during his post-conviction appeal, it refused to declare a constitutional right to counsel at that stage.  Rather, the Court deemed the right an “equitable” one.  In essence, the fractured majority engaged in a time-honored ritual of reaching a tenuous middle ground at the expense of clarity and conviction.  Call it “Goldilocks jurisprudence.”  While the Court may have reached a solution that was “just right” to garner the necessary votes, its lukewarm endorsement of the right to counsel stands at odds with the vital need for competent representation at initial post-conviction proceedings.

In most states, an inmate may not raise a claim of ineffective assistance of counsel on direct appeal.  As a consequence, the first opportunity to challenge the effectiveness of trial counsel comes during collateral – or “post-conviction” – review.  To further hamper a petitioner’s plight, the right to counsel is not constitutionally guaranteed to wage a post-conviction attack on the effectiveness of a trial or appellate lawyer.  Thus, habeas petitioners, many of whom are indigent prisoners without access to counsel or adequate legal resources, must typically attempt to meet their high legal burdens alone.  Even when a petitioner has counsel to help navigate the post-conviction labyrinth, the right-to-counsel limitation prevents challenges to the effectiveness of post-conviction counsel on federal habeas review.  Put simply, without a constitutional right to post-conviction counsel, a prisoner cannot challenge whether his lawyer measured up to Sixth Amendment standards.  As a consequence, prisoners are faced with the choice between proceeding pro se or gambling on a post-conviction lawyer whose performance, no matter how poor, is unassailable.

The facts of Martinez cast a spotlight on the post-conviction conundrum for incarcerated and indigent litigants.  In that case, Luis Martinez was convicted of two counts of sexual conduct with a minor and sentenced to consecutive terms of thirty-five years to life.  Following the denial of his direct appeal, Martinez’ court-appointed counsel filed a Notice of Post-Conviction Relief asserting that “she had ‘reviewed the transcripts and trial file and [could] find no colorable claims[.]’”   The statute of limitations for pursuing post-conviction relief expired with no additional filings.  Represented by new counsel, Martinez later attempted to file a post-conviction appeal attacking the ineffectiveness of his trial counsel.   The Arizona Court of Appeals denied the petition on the basis that the claims “could have been raised in the previous post-conviction proceeding” but were not.   The Arizona Supreme Court declined to review the petition.

Martinez petitioned for federal habeas corpus relief, arguing that his first post-conviction counsel had rendered ineffective assistance by failing to challenge the effectiveness of his trial counsel.   The district court dismissed the petition and the Ninth Circuit affirmed the ruling.  Both courts held that the lack of a federal right to post-conviction counsel precludes a challenge for failure to raise a claim founded on ineffective assistance.   The Supreme Court granted certiorari on the question of “[w]hether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of counsel, but who has a state-law right to raise such a claim in a first post-conviction 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.”

To the critical question of whether the Sixth Amendment requires competent counsel at first stage post-conviction appeal, the Supreme Court answered with a resounding, “Um, ah, sort of.”  For right-to-counsel proponents, the Court’s initial analysis was promising.  Writing for the majority, Justice Kennedy acknowledged that a petitioner’s first chance to raise ineffective assistance of counsel claims on post-conviction review makes such petitions “the equivalent of [a] direct appeal” and “marks a key difference” between initial post-conviction review and subsequent collateral proceedings.  He then endorsed a key piece of Martinez’ core argument – that incarcerated defendants “are generally ill-equipped to represent themselves,” especially without pleadings or a transcript from a prior court hearing to use as guidance.

From there, Kennedy’s taste for the Sixth Amendment cooled.  He opined that only “as an equitable matter” may a prisoner raise a claim of ineffective assistance of counsel at first post-conviction proceedings when he is “impeded or obstructed in complying with a State’s established procedures.”  An “equitable ruling,” said the Court, will provide post-conviction petitioners a potential avenue for habeas relief without providing “a freestanding constitutional claim [.]”  In essence, the Court recognized the necessity of effective counsel at first post-conviction proceedings but refused to characterize the need as a constitutional one.  To do so, Kennedy wrote, might impose undue administrative burdens on states forced to appoint counsel in post-conviction appeals or result in the reversal of pending state collateral cases.

Martinez’ middling approach to the right to counsel is reminiscent of another recent Sixth Amendment case, Booker v. Washington.  There, the Supreme Court declared that the mandatory application of the United States Sentencing Guidelines reflected an unconstitutional violation of the right to a fair trial.  Then, in the same opinion, the Court resuscitated the Guidelines as “effectively advisory.”  The promise of the so-called “Booker fix” has proved largely illusory.  Most district courts continue to apply the draconian sentencing ranges dictated under the Guidelines as if the ranges are binding.  Today, Booker represents “Goldilocks jurisprudence” at its most tepid.

Without question, compromise and consensus-building around controversial issues is necessary on an ideologically divided bench.  Nevertheless, Martinez, Booker, and other recent Sixth Amendment jurisprudence, stand in sharp contrast to the Court’s unabashed zeal for stripping the constitutional rights of prisoners in other areas.  As Justice Kennedy stated at the outset of his opinion, first-stage post-conviction counsel is just as critical as counsel at trial and on direct appeal.  Indeed, prisoners most in need of federal habeas relief – those with ineffective assistance of legal counsel at trial – are often barred from litigating important constitutional claims in federal court for failure to raise the same claim on state post-conviction appeal.  In some cases, the procedural default itself may be caused by incompetent, ill-prepared, or functionally absent post-conviction counsel.

While the “Martinez fix” may partially address these obstacles, the absence of a constitutional rule will likely allow courts to sidestep claims of post-conviction ineffective assistance of counsel.  To be sure, skilled government attorneys will argue in virtually every case that a petitioner was not “impeded or obstructed from complying with the State’s established procedures” and, as a result, equitable relief is unavailable.  Such arguments are routinely advanced in cases involving indigent litigants and “equitable tolling” of time-barred post-conviction claims.

While the “Goldilocks jurisprudence” of Martinez leaves prisoners vulnerable to ineffective representation, the story should not end here.  Rather, the Supreme Court would be well-served to extend the protections of the Sixth Amendment to prisoners with the same aggression it used to roll back the Fourth Amendment rights of the same population in Howes and Florence.  Only then will prisoners to have a meaningful avenue to challenge the constitutional effectiveness of state post-conviction counsel in federal habeas proceedings.