Federal court evidentiary hearings are still permissible in many situations, where federal habeas courts can consider evidence not first presented in state court. To comply with Ramirez, an attorney representing an individual in federal habeas proceedings only needs to present the facts, evidence, or documents in state court for any purpose at any stage of the proceedings. Once that has been done, the federal habeas court can consider and rely upon those facts or documents (and hold an evidentiary hearing) even if the state court invoked a procedural basis either to not consider the claim or to disregard the factual support for the claim. This article will explain why the prosecution arguments mentioned at the outset are wrong, what the current state of the law is, and the litigation strategies state post-conviction attorneys and federal habeas attorneys should implement in light of Ramirez.
The Basics of How Claims Are Barred from Federal Habeas Review
Generally, when a claim was not presented in state court and no means exist to now present the claim in state court, the claim is considered procedurally defaulted and barred from federal habeas review. So too is a claim that was presented in state court but either not raised to the state appellate court or the state appellate court denied the claim on procedural grounds for the failure to properly present the claim. Exceptions to the bar exist when the state court failed to present a mechanism to raise the claim or the mechanism did not adequately allow for the development and presentation of the claim. If no exception exists, the procedural default in federal court can be excused upon a showing of a miscarriage of justice or “cause” and prejudice for the default.
Historically, for cause to exist, there had to be some impediment to raising the claim that is legally attributable to the government. In other words, “cause” had to be connected to a constitutional right. Examples include juror recalcitrance, government failure to disclose material, exculpatory evidence, and ineffective assistance of counsel at the stage of a proceeding at which a federal constitutional right to effective assistance of counsel exists.
The Martinez v. Ryan Exception
In Martinez v. Ryan, 566 U.S. 1 (2012), the US Supreme Court carved out a new ground to establish “cause” that is the only “cause” not connected to a constitutional right. This new ground is ineffective assistance of initial-review collateral proceeding counsel for the failure to raise, or to adequately develop and present, an ineffective assistance of trial counsel claim (note there is no federal constitutional right to effective assistance of counsel in any post-conviction proceeding), and in limited situations, where the habeas petitioner was pro se in state post-conviction proceedings.
Later case law made clear Martinez applies in states that permit raising ineffective assistance of counsel claims on direct appeal but either had a narrow means for doing so that meant the claim needed to be presented instead in post-conviction or urged this type of claim to be presented in post-conviction. Later cases also made clear “cause” under Martinez was limited to only claims involving ineffective assistance of trial counsel.
Narrow in scope but significant for individuals whose trial counsel and initial post-conviction counsel were ineffective, Martinez-based claims began percolating in federal courts. Often, but not always, the factual basis for the underlying claim had not been developed in state court because the attorney who would have developed, and presented, that evidence performed ineffectively. After all, that is the nature of most Martinez-based claims. Federal courts, therefore, allowed the factual record to be developed in federal court and considered facts and evidence that had not first been presented in state court. That has been the nature of Martinez litigation for 10 years, until the US Supreme Court, in Shinn v. Ramirez, changed the landscape.
The Ramirez Exception
In Ramirez, the Court held, in the Martinez v. Ryan context, federal habeas courts can consider only facts/evidence first presented in state court. While that seems straightforward, it is not. This article will discuss what this means and how to litigate state post-conviction and federal habeas claims in light of Ramirez. But first, it is important to understand what Ramirez does not do and the limited nature of when it applies.
Ramirez did not overrule precedent. The majority opinion did not even suggest it was doing so, and it cannot do so implicitly. Lower courts should never “conclude that [the Supreme Court’s] most recent cases have, by implication, overruled earlier precedent. Rather, lower courts should follow the case which directly controls.” Agostini v. Felton, 521 U.S. 203, 207 (1997). “That is so even where subsequent decisions or factual developments may appear to have ‘significantly undermined’ the rationale for [the Court’s] earlier holding.” Roper v. Simmons, 543 U.S. 551, 594 (2005). Simply, unless the Supreme Court overrules its own precedent, the precedent remains the law and thus remains binding no matter what interpretation or limits the Court has since placed on that precedent. This is crucially important because the Court, in Ramirez, did not say it was overruling Martinez and Williams (Michael) v. Taylor, 429 U.S. 420 (2000), or eliminating the exceptions to the exhaustion requirement for federal habeas proceedings. Thus, Martinez remains alive and fully applicable today, as does Williams (Michael), and all other precedent existing when Ramirez was decided.
As the Court emphasized in Ramirez, “[t]he question presented [wa]s whether the equitable rule announced in Martinez permits a federal court to dispense with [28 U.S.C.] § 2254(e)(2)’s narrow limits because a prisoner’s state postconviction counsel negligently failed to develop the state-court record.” Ramirez, 142 S. Ct. at 1728. The court merely interpreted, and decided, whether facts and evidence not presented first to the state court could be considered in the narrow context of an ineffective assistance of collateral proceeding counsel matter. It held that “when a federal habeas court convenes an evidentiary hearing for any purpose, or otherwise admits or reviews new evidence for any purpose, it may not consider that evidence on the merits of a negligent prisoner’s defaulted claim unless the exceptions in § 2254(e)(2) are satisfied.” Id. at 1738 (emphasis added). To understand what this means, the focus must be on the Court not overruling any prior precedent, defaulted claims (ones not presented in state court at all or that the state court rejected for failure to comply with a state procedural rule that the federal court has found to be applicable, regularly followed by the state court, and independent of federal law), and the phrase “negligent prisoner.”
This holding focuses on consideration of evidence and, even then, only when the evidence is to be considered “on the merits” of a claim and only as to a claim where the claim was defaulted due to a “negligent” prisoner’s actions. Ramirez, therefore, does not limit the ability to hold an evidentiary hearing but can, in the narrow context of a Martinez claim, render an evidentiary hearing meaningless if the court cannot then consider the evidentiary hearing evidence in determining whether to grant habeas relief and no already-existing record evidence supports granting relief on the claim. “On the merits” means the substantive basis for granting relief (a constitutional violation), not a procedural matter. So, Ramirez does not prohibit a court from holding an evidentiary hearing, or from considering evidence or documents not first presented in state court, to resolve a procedural matter, such as procedural default, statute of limitations, equitable tolling, or cause to excuse a default, except when ineffective assistance of initial review collateral proceeding counsel is at issue and the evidence that would be presented is the same evidence that would prove the underlying trial counsel ineffectiveness claim. Put another way, Ramirez has no impact on a federal court’s authority to hold an evidentiary hearing and consider facts not presented in state court when the purpose of the evidence is not to decide the merits of the constitutional claim for relief, or when the evidence is submitted for any reason outside of the context of procedural default, or if the basis to excuse the procedural default is anything other than ineffective assistance of initial-review collateral proceeding counsel. See Wholaver v. Wetzel, 2022 WL 17082094 (M.D. Pa., Nov. 18, 2022) (holding Ramirez does not apply to discovery or any other federal habeas fact-development conducted with regard to a claim alleging the prosecution failed to disclose material, exculpatory evidence); Barbour v. Hamm, 2022 WL 3570327 (M.D. Ala. Aug. 18, 2022) (addressing Ramirez in the context of the miscarriage of justice basis to excuse a procedural default). That is because Ramirez deals only with presenting evidence for the first time in federal court to excuse a default, and even in that situation, it has nothing to do with any basis to excuse a default that does not involve a “negligent prisoner.”
Ramirez also has no impact on a federal court’s authority to hold an evidentiary hearing and consider facts not presented in state court if the relevant evidence was presented to the state court, but the state court did not make factual findings regarding that evidence. And, Ramirez does not apply when the habeas petitioner was pro se in state post-conviction proceedings; after all, Ramirez did not even discuss that situation. Marks v. Johnson, 2022 WL 13815652, *5 (D. Nev.).
Section 2254(e)(2) bars an evidentiary hearing if the habeas petitioner “failed to develop the factual basis of a claim in State court proceedings.” The exceptions to this bar are a new rule of constitutional law retroactive on collateral review or a “factual predicate that could not have been previously discovered through the exercise of due diligence” and the underlying facts “would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” As noted above, section 2254(e)(2) bars an evidentiary hearing if the habeas petitioner “failed to develop the factual basis of a claim in State court proceedings.” Here, “failed to develop” is not given its literal meaning. [Indeed, the Court rejected the warden’s argument in Williams (Michael) that “failed to develop” categorically barred an evidentiary hearing under all circumstances unless one of the two statutory exceptions applies. Once again, Williams (Michael) has not been expressly overruled by the Supreme Court and thus remains governing law. Interpreting Ramirez to bar consideration of evidence not presented in state court in all circumstances unless the statutory exception of section 2254(e)(2) applies would be the opposite of what the Court held in Williams (Michael) and thus is not, and cannot be, what the Court meant.] Rather, the Court has interpreted it to mean the habeas petitioner is “at fault,” which means “bears responsibility for the failure” to develop the state court record through a “lack of diligence, or some greater fault attributable to the [habeas petitioner] or the [habeas petitioner’s] counsel.” Williams (Michael), 529 U.S. at 432. “[A] person is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance.” Id.
But not all conduct of another or happenstance means one is not “at fault” in the context of “cause” or section 2254(e)(2). The impediment must be an external one that involves a constitutional right. When it is, “fault” is attributed to the government. This would include juror recalcitrance (right to impartial jury); prosecution’s failure to disclose material, exculpatory evidence; denial of reasonable access to the courts; or any other impediment for which the failure to develop the claim in state court can be attributed to the government (habeas petitioner not responsible for the failure and thus not at fault) and a constitutional right is involved in the failure to develop (not the underlying claim). This should also include gross negligence (Holland v. Florida, 560 U.S. 631 (2010)) and abandonment by counsel (Maples v. Thomas, 565 U.S. 266 (2012)). In these situations, the habeas petitioner acted diligently.
“Diligence means the individual “made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend . . . upon whether those efforts could have been successful.” Id. at 435. In the situations described above, the habeas petitioner took diligent steps to try to develop and present the claim in a timely and proper fashion, but counsel acted as the actual impediment or counsel simply abandoned the habeas petitioner (or state court litigant) and thus was not acting on his or her behalf. It could hardly be said the habeas petitioner bears responsibility for counsel’s actions when counsel was not acting on the person’s behalf. The Ramirez Court seems to have implicitly recognized this when it used the term “negligently failed” to develop. When counsel acted with gross negligence or abandoned the habeas petitioner-defendant, the action or situation has gone well beyond negligence and is therefore outside the scope of where Ramirez limits consideration of new evidence in federal habeas proceedings.
In addition to these situations, if the habeas petitioner had requested an evidentiary hearing on the claim in state court and complied with the state law pleading requirements for seeking an evidentiary hearing, the habeas petitioner did not “fail to develop” the claim and the federal court can consider evidence not previously presented in state court.
Problematic for habeas petitioners who invoke Martinez is that, unlike all other bases to establish “cause,” there is no constitutional right to the effective assistance of initial-review collateral proceeding counsel. As a result, historically, and even under Martinez, initial-review collateral proceeding counsel’s actions/performance is attributable to the habeas petitioner. Thus, the Court, in Ramirez, rejected the argument that the habeas petitioner is not “at fault” and did not “fail to develop” in the context of Williams (Michael) and 28 U.S.C. § 2254(e)(2). Because the Court determined the habeas petitioner is at fault in the Martinez context, when Martinez is the basis to excuse a default, section §2254(e)(2)’s limitation on considering new evidence in federal court bars consideration of evidence not first presented in state court. This is so even if an evidentiary hearing is not necessary to present the evidence.
Litigation Strategies in Light of Ramirez
In view of the narrow scope and applicability of Ramirez, the questions become the following: (1) How should an attorney representing an individual in state post-conviction or federal habeas proceedings litigate claims in light of Ramirez? and (2) What should federal habeas counsel do when faced with a trial counsel ineffectiveness claim for which initial review collateral proceeding counsel also performed ineffectively by failing to either raise the trial counsel ineffectiveness claim or develop or plead the claim properly?
As to the state post-conviction practitioner, first and foremost, counsel should plead a claim on as many alternative legal grounds as possible and plead the claim with as much factual support and detail as possible. Do not leave anything out. Do not fail to mention all the relevant facts, who would testify, and the details of what those individuals would say in their testimony. For example, do not say family members could have testified to the abuse the defendant suffered during childhood. Instead, specify which family members could have so testified, what they would have said, the graphic details of the abuse, and that they were available to testify at trial and would have testified consistently with their post-trial statements if trial counsel had contacted them, asked them about it, and requested they testify.
Although pleading with specificity is a necessity, doing so is not itself enough. Counsel must remember that any document, and any factual allegation, that is not part of the state court record cannot be considered by the federal habeas court unless the habeas petitioner was not “at fault” for the failure to develop the factual record in state court. In light of Ramirez, a federal court will almost never be able to consider in the Martinez context evidence the petitioner did not first attempt to develop in state court.
At a minimum, the due diligence necessary to attempt to develop the claim in state court includes seeking an evidentiary hearing and providing the level of specificity state law requires. This usually means specifying on which claims a hearing is sought; the facts that are in dispute; how those facts, if proven true, support the claim and could entitle one to relief under the legal theory; and who are the witnesses and what you anticipate the witnesses would say. Counsel should not assume an evidentiary hearing will be granted and thus hold back documents until the hearing is held. Instead, all documents that support the claim(s) for relief, and the factual allegations contained therein, should be attached to the post-conviction petition and pleadings. By doing so, counsel ensures that both the facts have been pled and the supporting documentation has been provided to the state court. This means, regardless of how the state court decides the claim, the federal court can consider those facts and documents when the case reaches federal habeas proceedings.
If the claim or facts come to light while the state post-conviction proceeding is on appeal, counsel should attempt to file the supporting documents in the appellate record and consider filing an additional state post-conviction action that alleges the claim and presents the new facts and documents supporting the claim. Counsel should do the same if the claim or facts come to light after the conclusion of state court proceedings but before the federal habeas petition is filed. In this context, if the federal habeas statute of limitations is approaching and it is unclear if a subsequent state post-conviction action would be considered a properly filed state post-conviction action, counsel should also file a federal habeas petition and seek to have the habeas petition placed in abeyance until the conclusion of state post-conviction proceedings. Remember in this regard, as long as counsel presents the facts and supporting documentation and evidence in state court, the federal court can consider those facts and documents. All efforts should therefore be made to present the facts and supporting documentation or evidence regardless of whether counsel believes the state court is likely to consider the evidence on the merits or not and regardless of any unlikelihood of prevailing in state court.
When returning to state court to present the additional facts, evidence, or documentation, counsel should argue the state court should adopt Martinez as a state law basis to excuse a procedural bar that resulted from ineffective assistance of initial-review collateral proceeding counsel, if state law does not already recognize the right to effective assistance of post-conviction counsel. In so arguing, counsel should emphasize that Ramirez placed a renewed emphasis on state courts as the primary forum to litigate claims and requires presenting the facts or evidence to the state court before they can be presented in federal court. That cannot be done in the initial state post-conviction proceeding for the simple reason that it was counsel at that proceeding who performed ineffectively and is therefore responsible for the facts, evidence, or documentation not being presented. Thus, the claim or facts can only be presented and developed after initial state post-conviction proceedings have concluded.
The US Supreme Court has now held that those facts must still be presented in state court before the federal court can consider them in the context of Martinez. The Supreme Court has recognized that, in this context, state courts are now the proper forum to present the claim and the supporting documentation. As a result, an avenue to present the relevant facts, documentation, and evidence must exist; the Supreme Court has now said in Ramirez that avenue is state court.
The state court must now provide an avenue to present the facts, documentation, or evidence regardless of whether the state court did, or did not, need to do so prior to Ramirez. While making this argument, counsel should plead and document within the record all aspects of state law that inhibit or preclude the full development of the claim and the full presentation of facts and supporting documentation. This can potentially include limits on discovery, limits on evidentiary hearing, lack of funds for investigation, lack of an investigator, lack of funds for expert assistance, a conflict of interest, and any other case-specific or systemic problems interfering with the ability to develop and present the facts, documentation, or evidence to the state court. This can then be used in federal court to argue that the state court system did not provide an adequate mechanism to develop and present the claim, which will be discussed in more detail shortly.
If the case is already in federal habeas proceedings, habeas counsel should seek to place habeas proceedings in abeyance while counsel returns to state court to raise the trial counsel ineffectiveness claim for which initial-review collateral proceeding counsel has been asserted to excuse the procedural default. See Guevara-Pontifes v. Baker, 2022 WL 4448259 (D. Nev. Sept. 23, 2022) (granting motion to place proceedings in abeyance while petitioner returns to state court and argues that Martinez should be adopted as a state court basis to excuse a procedural bar). Habeas counsel should seek abeyance and return to state court even if the claim had been fully presented in state court, but there are facts, documentation, or evidence supporting the claim that were not presented in state court. Habeas counsel should also do so if the claim not presented in state court is supported by the state court record, but additional evidence developed in federal court also supports the claim. And even if the federal court denies abeyance, counsel should return to state court despite habeas proceedings going forward on a simultaneous timetable.
Once again, as long as the facts, documentation, or evidence are presented in state court, the federal court reviewing a Martinez-based claim can consider that evidence, regardless of whether, upon return to state court, the state court decided the claim on its federal constitutional merits or denied the claim on procedural grounds without considering the evidence. Indeed, a government amicus brief filed at the petition stage in Ramirez argued the habeas petitioner only had to present the facts, documentation, or evidence to the state court, not that the state court had to consider it on its merits. And Ramirez itself refers to presenting the evidence in state court, not what the state court does with it. Requiring presentation, as opposed to focusing on how the state court addressed the evidence when one returns to state court to present it, is consistent with long-standing Supreme Court law regarding exhaustion and procedural default. That law deals with fair presentation of the evidence to the state court in conformance with state law.
Plus, if the state court had to actually consider the facts, documentation, or evidence before the federal court could do so, it would essentially overrule Martinez to the extent that Martinez would apply to only record-based trial counsel ineffectiveness claims for which no other evidence is relevant. That is because a merits state court ruling would mean the claim was decided on its federal constitutional merits and thereby not defaulted. In such a scenario, Martinez would not be needed to excuse a default for the simple reason that there was no default and thus the merits of the claim can automatically be reached. Martinez was not so limited itself, and nothing in Ramirez held it was partially overruling Martinez or otherwise limiting Martinez in this regard. Because only the Supreme Court can overrule its precedent and because it does so only by expressly stating it is doing so in whole or in part, Ramirez cannot be interpreted to mean Martinez is now limited to only the rare ineffective assistance of counsel claim that is based on the state court record but was either not raised or not properly raised by initial-review collateral proceeding counsel. So, again, presenting the facts, documentation, or evidence to the state court regardless of what the state court then does is all Ramirez requires.
This leaves one aspect left to discuss. What happens if the state court refuses to provide an avenue to present the facts, documentation, or evidence, or the state court process for doing so is ineffective? Section 2254(b)(1)(B)(i) of title 28 U.S.C. excuses the requirement to present, and develop, a claim in state court if “there is absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” Ramirez says nothing about this statutory exception to the exhaustion requirement and certainly cannot eliminate a statute. Thus, this exception to the exhaustion requirement remains in place after Ramirez. If the state court refuses to provide a mechanism to raise a trial counsel ineffectiveness claim that was either not previously raised or not adequately developed and presented due to initial-review collateral proceeding counsel ineffectiveness, habeas counsel should invoke this provision to argue the statutory excusal of exhaustion means the relevant facts, documentation, or evidence can, consistent with Ramirez, be presented for the first time through federal habeas proceedings. The same should be argued where the state court process was ineffective itself in the sense that the process prevented the adequate presentation of the facts. For example, this would include when discovery is not permitted or funds for expert assistance were either denied as a whole or not authorized unless and until a state court evidentiary hearing is granted. All of this, and the fact the statutory excusal of exhaustion was not interpreted or even discussed in Ramirez, further demonstrates that attempting to present the facts, documentation, or evidence in state court at any stage of the proceedings, regardless of how the state court then deals with the information and the claim, is all Ramirez requires. It is therefore paramount to take all steps to present the facts, documentation, or evidence in state court regardless of how many state post-conviction actions have already been filed and regardless of the current stage of the proceedings of the client’s case.
In sum, while one could, at first blush, as prosecutors have argued, think Ramirez eliminates federal court evidentiary hearings in almost all situations and categorically prohibits the presentation of facts, documentation or evidence that has not first been presented to the state court, it is instead a narrow decision that applies to only a narrow circumstance—that is, an ineffective assistance of trial counsel claim where ineffective assistance of initial-review collateral proceeding counsel is invoked as grounds to excuse the procedural default and the factual support of the claim, or the factual basis to excuse the default, was not presented to the state court. In this relatively narrow scenario, all counsel or the habeas petitioner needs to do to satisfy Ramirez’s requirements is present the facts, documentation, or evidence to the state court.
While it is best to do so as early in the process as possible, counsel should always attempt to do so even if the case is in federal habeas proceedings or beyond. Indeed, depending on how the federal court ruled and how the state court rules when one returns to state court, it may be possible to then reopen already-concluded federal habeas proceedings. And when the state court does not provide a mechanism to raise the claim in general or at the current posture of the case when initial review collateral proceeding counsel’s ineffectiveness was the reason the claim was not presented before, or not adequately developed and presented before, 28 U.S.C. § 2254(b)(1)(B)(i) operates to excuse the failure to have presented the facts, documentation, or evidence to the state court. It therefore allows, consistent with Ramirez, the federal court to consider, and rely upon, facts, documentation, or evidence that had not before been presented to the state court. After all, the focus has always been, and continues to be, on a good faith, due diligent effort to present the claim and supporting documentation to the state court before the federal court can consider it.
