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December 01, 2017

Supreme Court Declines to Extend Equitable Relief to Defaulted Claims of Ineffective Direct Appeal Counsel

On June 26, 2017, in Davila v. Davis, the U.S. Supreme Court held that a failure to raise postconviction claims of ineffective assistance of direct appeal counsel in state court would not serve to excuse procedural default of these claims on federal review. Typically claims that are not properly raised at the state level in post-conviction proceedings are considered defaulted and cannot subsequently be considered by federal courts. Martinez v. Ryan (2012) created an equitable exception to this general rule. There, the Court found that a federal court could review a waived or otherwise procedurally defaulted claim, if (1) the claim was based on ineffective assistance of trial counsel, and (2) post-conviction counsel’s failure to raise that claim was itself ineffective assistance that was prejudicial to the client. The Court reasoned that capital prisoners are entitled to a chance to defend their Sixth Amendment right to effective representation at trial, and postconviction is typically the first opportunity to assert that this right has been violated. Even though there is no constitutional right to effective post-conviction counsel, the Court established this equitable rule because of its implications for the underlying constitutional right to effective trial counsel.

There is also a constitutional right to effective counsel in the direct appeal of a conviction, which is similarly impacted by the performance of postconviction counsel. Until Davila, however, it remained an open question whether a federal court could review a procedurally defaulted claim of ineffective assistance of appellate counsel if these same circumstances were met.

Writing for the majority, Justice Thomas—who had dissented in Martinez—distinguished the exception announced there from the rule announced in Davila, writing “the criminal trial enjoys pride of place in our criminal justice system in a way that an appeal from that trial does not.” The opinion also emphasized the importance of comity, finality, and federalism, finding that an expansion of Martinez to other claims such as ineffective assistance of appellate counsel “would unduly aggravate the special costs to our federal system that federal habeas review already imposes.”

Justice Breyer, joined by Justices Kagan, Sotomayor, and Ginsburg, dissented, writing that because petitioners were entitled to constitutionally effective representation in direct appeal proceedings as well as at trial, both errors should be cognizable in federal habeas proceedings. He opined that courts are obligated to “treat like cases alike . . . what is sauce for the goose is sauce for the gander.” He then quoted from Justice Scalia’s dissent in Martinez, which anticipated this case—though assumed a different outcome. Justice Scalia wrote that there “is not a dime’s worth of difference in principle between [ineffective-assistance-of-trial-counsel] cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised,” including “claims asserting ineffective assistance of appellate counsel.”

Justices Roberts, Kennedy, and Alito were all in the majority in both Martinez and Davila, creating a dramatic shift from a 7-2 majority in support of the equitable exception in Martinez to a 5-4 majority against the equitable exception in Davis