Constitutional Law Criminal Law

SCOTUS Just Made it Easier to Execute the Innocent

It should be clear by now that we are dealing with a SCOTUS bench that does not place great weight on individual rights and especially on the rights of the accused. Today in Shinn v. Martinez, a 6-3 (guess who) SCOTUS decision made it even harder for an incarcerated individual claiming innocence to be heard in Federal Court.

Federal Habeas

Before discussing the case let’s look quickly at Habeas Corpus. The Writ of Habeas Corpus used to be called The Great Writ. In summary, it allowed State defendants to seek relief from the Federal Court if they could prove that the State Court violated the Federal Constitution. I say “used to be called the Great Writ,” because in the wake of the Oklahoma City bombing and the crime wave of the late ’80s-early ’90s, fueled in large part by poverty, cocaine, and crack, Bill Clinton, triangulating himself to curry favor with the GOP and conservative Dems, signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The law set up several hoops that a State defendant had to get through to even be heard. It also set stringent deadlines that if you missed by even a day meant you were out of luck.

A federal habeas court generally may consider a state prisoner’s federal claim only if he has first presented that claim to the state court in accordance with state procedures. When the prisoner has failed to do so, and the state court would dismiss the claim on that basis, the claim is “procedurally defaulted.” To overcome procedural default, the
prisoner must demonstrate “cause” to excuse the procedural defect and “actual prejudice” if the federal court were to decline to hear his claim. Coleman v. Thompson, 501 U. S. 722, 750 (1991). In Martinez v. Ryan, 566 U. S. 1 (2012), SCOTUS explained that ineffective assistance of
postconviction counsel is “cause” to forgive procedural default of an ineffective-assistance-of-trial-counsel claim (IAC), since the procedural bar in AEDPA states that the claim must be denied if the “petitioner ‘fails’ to create a proper record” because IAC means that the petitioner did not “fail” his lawyer did. So if you had a lousy trial lawyer but then your appellate lawyer was also lousy for not pointing out that your trial lawyer was lousy, you could get heard by the Federal Court. A year later, in Trevino, 569 U. S. 413, the Court reaffirmed and extended Martinez’s core holding. Trevino held that where a State does not offer “a meaningful opportunity to present a claim of ineffective assistance of trial counsel
on direct appeal,” a defendant whose post-conviction counsel renders ineffective assistance has demonstrated cause to excuse the procedural default of his trial-ineffectiveness claim.

But what happens if you want to add new evidence to support your IAC claim? Under AEDPA, its nearly impossible to add evidence to the State record of evidence. You have to show that the new evidence proves your “actual innocence” by clear and convincing evidence. That’s a high burden. In all but these extraordinary cases, AEDPA “bars evidentiary hearings in federal habeas proceedings initiated by state prisoners.” McQuiggin v. Perkins, 569 U. S. 383, 395 (2013).

But what if the reason there isn’t the evidence you need in the State record because you had a lousy lawyer? In other words, most of the time the petitioner wants to expand the record is because the evidence is “newly discovered” and they or their lawyer did not have it. But what if they had it, but just failed to present it? SCOTUS now says you are SOL – simply out of luck.

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These folks are on a tear.

Here’s a link to the decision:

Justice Thomas’ Decision – joined by Roberts, Alito, Gorsuch, Kavanaugh and Coney-Barrett

Thomas has seen a reawakening since Justices Kavanaugh and Coney-Barrett came on the bench. He is starting to ask more questions during oral argument and he is asserting himself more in opinions. In this case, the Court was looking at two cases from Arizona that raised the issue, each one uglier than the next. In Ramirez, the petitioner was not declaring innocence – just that there were several mitigating factors that his lawyers knew about that would have resulted in a reduced sentence for the brutal double murder of his girlfriend and her 15 year old daughter who he had also repeatedly raped. In Jones, the petitioner was claiming that his lawyers utterly failed to conduct an investigation that would have established an alternate suspect in the rape and murder of his girlfriend’s 4 year old daughter. Both petitioners were sentenced to death.

Both petitioners claimed that their appellate lawyers had factual proof to support their claims which they failed to present. The petitioners’ primary claim was that a prisoner is not “at fault” and therefore
has not “failed to develop the factual basis of a claim in
State court proceedings,” §2254(e)(2), if state postconviction
counsel negligently failed to develop the state record for a
claim of ineffective assistance of trial counsel. And they had good reason to argue that. Martinez and Trevino v. Thaler, which followed shortly after,
established that such a petitioner is not “at fault” for any failure
to bring a trial-ineffectiveness claim in state court. They contended that
where, per Martinez, a prisoner is not responsible for state postconviction counsel’s failure to raise a claim, it makes little sense to hold the prisoner responsible for the failure to develop that claim.

It made sense to Thomas and company, unfortunately. He stated: “We have no power to redefine when a prisoner has failed to develop the factual basis of a claim in State court proceedings.” (although that’s pretty much exactly what they did in Martinez). He went on to split hairs – “This Court’s holding in Martinez addressed only one kind of claim: ineffective assistance of trial counsel. We limited our holding in that way to reflect our “equitable judgment” that trial-ineffective-assistance claims are uniquely important.”

He went on to pay some lip service to Martinez though in reality this decision all but overrules it’s value:

“To be sure, Martinez recognized that state prisoners often need “evidence outside the trial record” to support their trial-ineffective-assistance claims. But Martinez did not prescribe largely unbounded access to new evidence
whenever postconviction counsel is ineffective, as respondents propose. Rather, Martinez recognized our overarching responsibility “to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. . . . The dissent contends that we “overstat[e] the harm to
States that would result from allowing” prisoners to develop
evidence outside §2254(e)(2)’s narrow exceptions. Not so. Serial relitigation of final convictions undermines the finality that “is essential to both the retributive and deterrent functions of criminal law.”

And there it is – the most important factor in the criminal justice system – Finality. As I have said at too many seminars and talks on wrongful conviction, the quest for finality outweighs every other factor in post-conviction proceedings.

I should point out that Mr. Jones’ lawyer argued that since the State did not object to the new evidentiary hearing allowed by the District Court and didn’t raise it until its argument at the Ninth Circuit that it forfeited and waived it. Thomas said he was willing to overlook that waiver since the issue could be raised in other cases later on. OK, but not in Jones’ DEATH PENALTY case. So Jones could waive an argument because his lawyer was ineffective but the State gets to waive and then keep its argument in the same case. Seems fair.

Justice Sotomayor’s Dissent – joined by Breyer and Kagan.

Justice Sotomayor wrote another scathing dissent. I mean, she has clearly had it (not that it does much good, except perhaps wake up Congress to fix what SCOTUS is taking down):

This decision is perverse. It is illogical: It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings, as Martinez and Trevino did, but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim. In so doing, the Court guts Martinez’s and Trevino’s core reasoning. The Court also arrogates power from Congress: The Court’s analysis improperly reconfigures the balance Congress struck in AEDPA between state interests and individual constitutional rights. By the Court’s telling, its holding (however implausible) is compelled by statute. Make no mistake. Neither AEDPA nor this Court’s precedents require this result. I respectfully dissent.

Sotomayor broke it down in simplest terms in trying to explain how this decision goes directly against Martinez and Trevino

Martinez and Trevino establish that petitioners are not at fault for any failure to raise their claims in state court in these circumstances. Other precedents hold that AEDPA’s §2254(e)(2)’s “failed to develop” language, too, incorporates a threshold requirement that the petitioner be at fault for not developing evidence. A petitioner cannot logically be faultless for not bringing a claim because of postconviction counsel’s ineffectiveness, yet at fault for not developing its evidentiary basis for exactly the same reason. . . . Applying this interpretation of §2254(e)(2) here makes clear that Jones and Ramirez are not at fault for their attorneys’ failures to develop the state-court record

Sotomayor pointed out that it makes no sense for Thomas to decry the additional burden put on States if these type of evidentiary hearings are allowed because these post-conviction evidentiary hearings would only be allowed if the evidence was already there but the lawyer failed to present them. So it would not add an additional hearing – it would merely allow a hearing that should have taken place. Thomas points out how lengthy the Jones hearing was that was originally allowed so Sotomayor points out this only shows the complete ineffectiveness of his lawyer to fail to present this evidence initially.

Thomas had a concern that State petitioners would “sandbag” the State by holding back on these arguments so that they could be raised in a Federal habeas proceeding. Sotomayor said it was ridiculous to think that a person facing Death Row with a valid claim of mitigation or innocence – backed by evidence – would keep it in their pocket. She then adds:

On the other side of the ledger, the Court understates, or ignores altogether, the gravity of the state systems’ failures in these two cases. To put it bluntly: Two men whose trial attorneys did not provide even the bare minimum level of representation required by the Constitution may be executed because forces outside of their control prevented them from vindicating their constitutional right to counsel.

There is an old saying “Bad cases make bad law” and for sure, these two fact patterns are horrible crimes. But that’s when the principles we hold dear – fairness, due process, right to effective counsel – face the greatest strengths. If we bend them when the facts are “bad,” they stay bent for when the facts are “good.” This did not fail to catch the attention of Justice Sotomayor:

Nor will the damage be limited to these two cases. Even before Martinez, this Court recognized that a trial record is “often incomplete or inadequate” to demonstrate inadequate assistance of counsel. Massaro v. United States, 538 U. S. 500, 505 (2003). A trial record “may contain no evidence of alleged errors of omission,” like a failure sufficiently to investigate a case. Ibid. For a court to discern “whether [any] alleged error was prejudicial,” too, it is obvious that “additional factual development” may be required. Ibid. The on-the-ground experience of capital habeas attorneys confirms this commonsense notion. See Brief for Federal Defender Capital Habeas Units as Amici Curiae 3–4. The Court’s decision thus reduces to rubble many habeas petitioners’ Sixth Amendment rights to the effective assistance of counsel.

She also takes a parting shot near the end of her dissent for the majority’s love of Finality:

Neither statute nor precedent supports the Court’s assertion that the virtues of finality override fundamental fairness to such a degree that meaningful review of life-or-death judgments obtained through such deeply flawed proceedings should be foreclosed. Ultimately, the Court’s decision prevents habeas petitioners in States like Arizona from receiving any guaranteed opportunity to develop the records necessary to enforce
their Sixth Amendment right to the effective assistance of counsel. . . Many, if not most, individuals in this position will have no recourse and no opportunity for relief. The responsibility for this devastating outcome lies not with Congress, but with this Court.


Sorry if this post was a little more legalese and in the weeds than my usual posts. I tried to break it down as simply as I could but as a lawyer who has worked to exonerate the innocent, it is important that I bring attention to these decisions that close down even the very narrow paths that exist. I get so tired of seeing so-called conservatives wave the flag about our freedoms and then ignore that one of our greatest and most important freedoms is the Sixth Amendment right to effective counsel. Placing finality and procedure over making sure we get it right – especially in States like Arizona which have the death penalty and do not allow yo to make an IAC claim on your direct appeal (meaning you basically only have a habeas to bring it up) – means simply that SCOTUS is comfortable with the execution of innocent people.

If you need a summary for this article, use that: SCOTUS is comfortable with the execution of innocent people.

Follow me on Twitter @oscarmichelen

contact me at omichelen@oscar-michelen

Here’s a link to the decision:

One reply on “SCOTUS Just Made it Easier to Execute the Innocent”

I already called this one back in December. I do not find it a surprising decision.

You win some, you lose some. They’re just “calling balls and strikes.” 🙄

“ Jackie Chiles says:
December 16, 2021 at 6:23 pm
Federal courts should not be reviewing state law cases based on new legal theories more than a quarter of a century after the related crimes occurred. That’s what “One of the worst legacies of the Bill Clinton Administration” was designed to prohibit.”

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