MARTINEZ v. RYAN

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–1001

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LUIS MARIANO MARTINEZ, PETITIONER v. CHARLES L. RYAN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 20, 2012]

Justice Kennedy delivered the opinion of the Court.

The State of Arizona does not permit a convicted person alleging ineffective assistance of trial counsel to raise that claim on direct review. Instead, the prisoner must bring the claim in state collateral proceedings. In the instant case, however, petitioner’s postconviction counsel did not raise the ineffective-assistance claim in the first collateral proceeding, and, indeed, filed a statement that, after reviewing the case, she found no meritorious claims helpful to petitioner. On federal habeas review, and with new counsel, petitioner sought to argue he had received ineffective assistance of counsel at trial and in the first phase of his state collateral proceeding. Because the state collateral proceeding was the first place to challenge his conviction on grounds of ineffective assistance, petitioner maintained he had a constitutional right to an effective attorney in the collateral proceeding. While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding.

I

A jury convicted petitioner, Luis Mariano Martinez, of two counts of sexual conduct with a minor under the age of 15. The prosecution introduced a videotaped forensic interview with the victim, Martinez’s 11-year-old stepdaughter. It also put in evidence the victim’s nightgown, with traces of Martinez’s DNA. As part of his defense, Martinez introduced evidence of the victim’s recantations, including testimony from the victim’s grandmother and mother and a second videotaped interview in which the victim denied any abuse. The victim also denied any abuse when she testified at trial. App. to Pet. for Cert. 38a–39a. To explain the inconsistencies, a prosecution expert testified that recantations of child-abuse accusations are caused often by reluctance on the part of the victim’s mother to lend support to the child’s claims. Pet. for Cert. 3. After considering the conflicting evidence, the jury convicted Martinez. He was sentenced to two consecutive terms of life imprisonment with no possibility of parole for 35 years. App. to Pet. for Cert. 39a.

The State appointed a new attorney to represent Martinez in his direct appeal. Ibid.; Pet. for Cert. 4. She made numerous arguments on Martinez’s behalf, including a claim that the evidence was insufficient and that newly discovered evidence warranted a new trial. App. to Pet. for Cert. 39a. Arizona law, however, did not permit her to argue on direct appeal that trial counsel was ineffective. State v. Spreitz, 202 Ariz. 1, 3, 39 P. 3d 525, 527 (2002). Arizona instead requires claims of ineffective assistance at trial to be reserved for state collateral proceedings.

While Martinez’s direct appeal was pending, the attorney began a state collateral proceeding by filing a “Notice of Post-Conviction Relief.” Martinez v. Schriro, 623 F. 3d 731, 733–734 (CA9 2010); Ariz. Rule Crim. Proc. 32.4(a) (2011). Despite initiating this proceeding, counsel made no claim trial counsel was ineffective and later filed a statement asserting she could find no colorable claims at all. 623 F. 3d, at 734. Cf. State v. Smith, 184 Ariz. 456, 459, 910 P. 2d 1, 4 (1996).

The state trial court hearing the collateral proceeding gave Martinez 45 days to file a pro se petition in support of postconviction relief and to raise any claims he believed his counsel overlooked. 623 F. 3d, at 734; see Smith, supra, at 459, 910 P. 2d, at 4. Martinez did not respond. He later alleged that he was unaware of the ongoing collateral proceedings and that counsel failed to advise him of the need to file a pro se petition to preserve his rights. The state trial court dismissed the action for postconviction relief, in effect affirming counsel’s determination that Martinez had no meritorious claims. 623 F. 3d, at 734. The Arizona Court of Appeals affirmed Martinez’s conviction, and the Arizona Supreme Court denied review. Id., at 733.

About a year and a half later, Martinez, now represented by new counsel, filed a second notice of postconviction relief in the Arizona trial court. Id., at 734. Martinez claimed his trial counsel had been ineffective for failing to challenge the prosecution’s evidence. He argued, for example, that his trial counsel should have objected to the expert testimony explaining the victim’s recantations or should have called an expert witness in rebuttal. Martinez also faulted trial counsel for not pursuing an exculpatory explanation for the DNA on the nightgown. App. to Brief in Opposition B–6 to B–12. Martinez’s petition was dismissed, in part in reliance on an Arizona Rule barring relief on a claim that could have been raised in a previous collateral proceeding. Id., at B–27; see Ariz. Rule Crim. Proc. 32.2(a)(3). Martinez, the theory went, should have asserted the claims of ineffective assistance of trial counsel in his first notice for postconviction relief. The Arizona Court of Appeals agreed. It denied Martinez relief because he failed to raise his claims in the first collateral proceeding. 623 F. 3d, at 734. The Arizona Supreme Court declined to review Martinez’s appeal.

Martinez then sought relief in United States District Court for the District of Arizona, where he filed a petition for a writ of habeas corpus, again raising the ineffective-assistance-of-trial-counsel claims. Martinez acknowledged the state courts denied his claims by relying on a well-established state procedural rule, which, under the doctrine of procedural default, would prohibit a federal court from reaching the merits of the claims. See, e.g., Wainwright v. Sykes, 433 U. S. 72 –85, 90–91 (1977). He could overcome this hurdle to federal review, Martinez argued, because he had cause for the default: His first postconviction counsel was ineffective in failing to raise any claims in the first notice of postconviction relief and in failing to notify Martinez of her actions. See id., at 84–85.

On the Magistrate Judge’s recommendation, the District Court denied the petition, ruling that Arizona’s preclusion rule was an adequate and independent state-law ground to bar federal review. App. to Pet. for Cert. 36a. Martinez had not shown cause to excuse the procedural default, the District Court reasoned, because under Coleman v. Thompson, 501 U. S. 722 –754 (1991), an attorney’s errors in a postconviction proceeding do not qualify as cause for a default. See id., at 754–755.

The Court of Appeals for the Ninth Circuit affirmed. The Court of Appeals relied on general statements in Coleman that, absent a right to counsel in a collateral proceeding, an attorney’s errors in the proceeding do not establish cause for a procedural default. Expanding on the District Court’s opinion, the Court of Appeals, citing Coleman, noted the general rule that there is no constitutional right to counsel in collateral proceedings. 623 F. 3d, at 736. The Court of Appeals recognized that Coleman reserved ruling on whether there is “an exception” to this rule in those cases “where ‘state collateral review is the first place a prisoner can present a challenge to his conviction.’ ” 623 F. 3d, at 736 (quoting Coleman, supra, at 755). It concluded, nevertheless, that the controlling cases established no basis for the exception. Certiorari was granted. 563 U. S. ___ (2011).

II

Coleman v. Thompson, supra, left open, and the Court of Appeals in this case addressed, a question of constitutional law: whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial. These proceedings can be called, for purposes of this opinion, “initial-review collateral proceedings.” Coleman had suggested, though without holding, that the Constitution may require States to provide counsel in initial-review collateral proceedings because “in [these] cases . . . state collateral review is the first place a prisoner can present a challenge to his conviction.” Id., at 755. As Coleman noted, this makes the initial-review collateral proceeding a prisoner’s “one and only appeal” as to an ineffective-assistance claim, id., at 756 (emphasis deleted; internal quotation marks omitted), and this may justify an exception to the constitutional rule that there is no right to counsel in collateral proceedings. See id., at 755; Douglas v. California, 372 U. S. 353, 357 (1963) (holding States must appoint counsel on a prisoner’s first appeal).

This is not the case, however, to resolve whether that exception exists as a constitutional matter. The precise question here is whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding. To protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the unqualified statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default. This opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.

A

Federal habeas courts reviewing the constitutionality of a state prisoner’s conviction and sentence are guided by rules designed 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. These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule. See, e.g., Coleman, supra, at 747–748; Sykes, supra, at 84–85. A state court’s invocation of a procedural rule to deny a prisoner’s claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed. See, e.g., Walker v. Martin, 562 U. S. ___, ___ (2011) (slip op., at 7–8); Beard v. Kindler, 558 U. S. ___, ___ (2009) (slip op., at 7). The doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law. See Coleman, 501 U. S., at 750. There is no dispute that Arizona’s procedural bar on successive petitions is an independent and adequate state ground. Thus, a federal court can hear Martinez’s ineffective-assistance claim only if he can establish cause to excuse the procedural default.

Coleman held that “[n]egligence on the part of a prisoner’s postconviction attorney does not qualify as ‘cause.’ ” Maples v. Thomas, 565 U. S ___, ___ (2011) (slip op., at 12). Coleman reasoned that “because the attorney is the prisoner’s agent . . . under ‘well-settled principles of agency law,’ the principal bears the risk of negligent conduct on the part of his agent.” Maples, supra, at ___ (slip op., at 12).

Coleman, however, did not present the occasion to apply this principle to determine whether attorney errors in initial-review collateral proceedings may qualify as cause for a procedural default. The alleged failure of counsel in Coleman was on appeal from an initial-review collateral proceeding, and in that proceeding the prisoner’s claims had been addressed by the state habeas trial court. See 501 U. S., at 755.

As Coleman recognized, this marks a key difference between initial-review collateral proceedings and other kinds of collateral proceedings. When an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner’s claim. This Court on direct review of the state proceeding could not consider or adjudicate the claim. See, e.g., Fox Film Corp. v. Muller, 296 U. S. 207 (1935) ; Murdock v. Memphis, 20 Wall. 590 (1875); cf. Coleman, supra, at 730–731. And if counsel’s errors in an initial-review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner’s claims.

The same is not true when counsel errs in other kinds of postconviction proceedings. While counsel’s errors in these proceedings preclude any further review of the prisoner’s claim, the claim will have been addressed by one court, whether it be the trial court, the appellate court on direct review, or the trial court in an initial-review collateral proceeding. See, e.g., Coleman, supra, at 756.

Where, as here, the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim. This is because the state habeas court “looks to the merits of the clai[m]” of ineffective assistance, no other court has addressed the claim, and “defendants pursuing first-tier review . . . are generally ill equipped to represent themselves” because they do not have a brief from counsel or an opinion of the court addressing their claim of error. Halbert v. Michigan, 545 U. S. 605, 617 (2005) ; see Douglas, 372 U. S., at 357–358.

As Coleman recognized, an attorney’s errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State’s procedures and obtain an adjudication on the merits of his claims. See 501 U. S., at 754; Evitts v. Lucey, 469 U. S. 387, 396 (1985) ; Douglas, supra, at 357–358. Without the help of an adequate attorney, a prisoner will have similar difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim. Claims of ineffective assistance at trial often require investigative work and an understanding of trial strategy. When the issue cannot be raised on direct review, moreover, a prisoner asserting an ineffective-assistance-of-trial-counsel claim in an initial-review collateral proceeding cannot rely on a court opinion or the prior work of an attorney addressing that claim. Halbert, 545 U. S., at 619. To present a claim of ineffective assistance at trial in accordance with the State’s procedures, then, a prisoner likely needs an effective attorney.

The same would be true if the State did not appoint an attorney to assist the prisoner in the initial-review collateral proceeding. The prisoner, unlearned in the law, may not comply with the State’s procedural rules or may misapprehend the substantive details of federal constitutional law. Cf., e.g., id., at 620–621 (describing the educational background of the prison population). While confined to prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective assistance, which often turns on evidence outside the trial record.

A prisoner’s inability to present a claim of trial error is of particular concern when the claim is one of ineffective assistance of counsel. The right to the effective assistance of counsel at trial is a bedrock principle in our justice system. It is deemed as an “obvious truth” the idea that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon v. Wainwright, 372 U. S. 335, 344 (1963) . Indeed, the right to counsel is the foundation for our adversary system. Defense counsel tests the prosecution’s case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged. See, e.g., Powell v. Alabama, 287 U. S. 45 –69 (1932) (“[The defendant] requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence”). Effective trial counsel preserves claims to be considered on appeal, see, e.g., Fed. Rule Crim. Proc. 52(b), and in federal habeas proceedings, Edwards v. Carpenter, 529 U. S. 446 (2000) .

This is not to imply the State acted with any impropriety by reserving the claim of ineffective assistance for a collateral proceeding. See Massaro v. United States, 538 U. S. 500, 505 (2003) . Ineffective-assistance claims often depend on evidence outside the trial record. Direct appeals, without evidentiary hearings, may not be as effective as other proceedings for developing the factual basis for the claim. Ibid. Abbreviated deadlines to expand the record on direct appeal may not allow adequate time for an attorney to investigate the ineffective-assistance claim. See Primus, Structural Reform in Criminal Defense, 92 Cornell L. Rev. 679, 689, and n. 57 (2004) (most rules give between 5 and 30 days from the time of conviction to file a request to expand the record on appeal). Thus, there are sound reasons for deferring consideration of ineffective-assistance-of-trial-counsel claims until the collateral-review stage, but this decision is not without consequences for the State’s ability to assert a procedural default in later proceedings. By deliberately choosing to move trial-ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed, the State significantly diminishes prisoners’ ability to file such claims. It is within the context of this state procedural framework that counsel’s ineffectiveness in an initial-review collateral proceeding qualifies as cause for a procedural default.

The rules for when a prisoner may establish cause to excuse a procedural default are elaborated in the exercise of the Court’s discretion. McCleskey v. Zant, 499 U. S. 467, 490 (1991) ; see also Coleman, supra, at 730–731; Sykes, 433 U. S., at 83; Reed v. Ross, 468 U. S. 1, 9 (1984) ; Fay v. Noia, 372 U. S. 391, 430 (1963) , overruled in part by Sykes, supra. These rules reflect an equitable judgment that only where a prisoner is impeded or obstructed in complying with the State’s established procedures will a federal habeas court excuse the prisoner from the usual sanction of default. See, e.g., Strickler v. Greene, 527 U. S. 263, 289 (1999) ; Reed, supra, at 16. Allowing a federal habeas court to hear a claim of ineffective assistance of trial counsel when an attorney’s errors (or the absence of an attorney) caused a procedural default in an initial-review collateral proceeding acknowledges, as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim. From this it follows that, when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U. S. 668 (1984) . To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322 (2003) (describing standards for certificates of appealability to issue).

Most jurisdictions have in place procedures to ensure counsel is appointed for substantial ineffective-assistance claims. Some States, including Arizona, appoint counsel in every first collateral proceeding. See, e.g., Alaska Stat. 18.85.100(c) (2010); Ariz. Rule Crim. Proc. 32.4(c)(2) (2011); Conn. Gen. Stat. §51–296(a) (2011); Me. Rules Crim. Proc. 69, 70(c) (2010); N. C. Gen. Stat. Ann. §7A–451(a)(2) (2009); N. J. Ct. Rule 3:22–6(b) (2012); R. I. Gen. Laws §10–9.1–5 (Lexis 1997); Tenn. Code Ann. §8–14–205 (2011). Some States appoint counsel if the claims require an evidentiary hearing, as claims of ineffective assistance often do. See, e.g., Ky. Rule Crim. Proc. 11.42(5) (2011); La. Code Crim. Proc. Ann., Art. 930.7(C) (West 2008); Mich. Rule Crim. Proc. 6.505(A) (2011); S. C. Rule Civ. Proc. 71.1(d) (2011). Other States appoint counsel if the claims have some merit to them or the state habeas trial court deems the record worthy of further development. See, e.g., Ark. Rule Crim. Proc. 37.3(b) (2011); Colo. Rule Crim. Proc. 35(b) (2011); Del. Super. Ct. Rule Crim. Proc. 61(e)(1) (2011); Indiana Rule Post-Conviction Remedies Proc. 1, §9(a) (rev. 2011); Kan. Stat. Ann. §22–4506 (2007); N. M. Dist. Ct. Rule Crim. Proc. 5–802 (2011); Hust v. State, 147 Idaho 682, 683–684, 214 P. 3d 668, 669–670 (2009); Hardin v. Arkansas, 350 Ark. 299, 301, 86 S. W. 3d 384, 385 (2007) (per curiam); Jensen v. State, 2004 ND 200, ¶13, 688 N. W. 2d 374, 378; Wu v. United States, 798 A. 2d 1083, 1089 (D. C. 2002); Kostal v. People, 167 Colo. 317, 447 P. 2d 536 (1968). It is likely that most of the attorneys appointed by the courts are qualified to perform, and do perform, according to prevailing professional norms; and, where that is so, the States may enforce a procedural default in federal habeas proceedings.

B

This limited qualification to Coleman does not implicate the usual concerns with upsetting reliance interests protected by stare decisis principles. Cf., e.g., Montejo v. Louisiana, 556 U. S. 778 –793 (2009). Coleman held that an attorney’s negligence in a postconviction proceeding does not establish cause, and this remains true except as to initial-review collateral proceedings for claims of ineffective assistance of counsel at trial. Coleman itself did not involve an occasion when an attorney erred in an initial-review collateral proceeding with respect to a claim of ineffective trial counsel; and in the 20 years since Coleman was decided, we have not held Coleman applies in circumstances like this one.

The holding here ought not to put a significant strain on state resources. When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.

This is but one of the differences between a constitutional ruling and the equitable ruling of this case. A constitutional ruling would provide defendants a freestanding constitutional claim to raise; it would require the appointment of counsel in initial-review collateral proceedings; it would impose the same system of appointing counsel in every State; and it would require a reversal in all state collateral cases on direct review from state courts if the States’ system of appointing counsel did not conform to the constitutional rule. An equitable ruling, by contrast, permits States a variety of systems for appointing counsel in initial-review collateral proceedings. And it permits a State to elect between appointing counsel in initial-review collateral proceedings or not asserting a procedural default and raising a defense on the merits in federal habeas proceedings. In addition, state collateral cases on direct review from state courts are unaffected by the ruling in this case.

The rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State’s appellate courts. See 501 U. S., at 754; Carrier, 477 U. S., at 488. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons.

In addition, the limited nature of the qualification to Coleman adopted here reflects the importance of the right to the effective assistance of trial counsel and Arizona’s decision to bar defendants from raising ineffective-assistance claims on direct appeal. Our holding here addresses only the constitutional claims presented in this case, where the State barred the defendant from raising the claims on direct appeal.

Arizona contends that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254, bars Martinez from asserting attorney error as cause for a procedural default. AEDPA refers to attorney error in collateral proceedings, but it does not speak to the question presented in this case. Section 2254(i) provides that “the ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief.” “Cause,” however, is not synonymous with “a ground for relief.” A finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted. In this case, for example, Martinez’s “ground for relief” is his ineffective-assistance-of-trial-counsel claim, a claim that AEDPA does not bar. Martinez relies on the ineffectiveness of his postconviction attorney to excuse his failure to comply with Arizona’s procedural rules, not as an independent basis for overturning his conviction. In short, while §2254(i) precludes Martinez from relying on the ineffectiveness of his postconviction attorney as a “ground for relief,” it does not stop Martinez from using it to establish “cause.” Holland v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 18).

III

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

In this case Martinez’s attorney in the initial-review collateral proceeding filed a notice akin to an Anders brief, in effect conceding that Martinez lacked any meritorious claim, including his claim of ineffective assistance at trial. See Anders v. California, 386 U. S. 738 (1967) . Martinez argued before the federal habeas court that filing the Anders brief constituted ineffective assistance. The Court of Appeals did not decide whether that was so. Rather, it held that because Martinez did not have a right to an attorney in the initial-review collateral proceeding, the attorney’s errors in the initial-review collateral proceeding could not establish cause for the failure to comply with the State’s rules. Thus, the Court of Appeals did not determine whether Martinez’s attorney in his first collateral proceeding was ineffective or whether his claim of ineffective assistance of trial counsel is substantial. And the court did not address the question of prejudice. These issues remain open for a decision on remand.

*  *  *

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

SUPREME COURT OF THE UNITED STATES

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No. 10–1001

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LUIS MARIANO MARTINEZ, PETITIONER v. CHARLES L. RYAN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 20, 2012]

Justice Scalia, with whom Justice Thomas joins, dissenting.

I A

Let me get this straight: Out of concern for the values of federalism; to preserve the ability of our States to provide prompt justice; and in light of our longstanding juris-prudence holding that there is no constitutional right to counsel in state collateral review; the Court, in what it portrays as an admirable exercise of judicial restraint, abstains from holding that there is a constitutional right to counsel in initial-review state habeas. After all, that would have meant, in a case such as the one before us, that failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, would constitute cause for excusing procedural default. See Strickland v. Washington, 466 U. S. 668 (1984) . Instead of taking that radical step, the Court holds that, for equitable reasons, in a case such as the one before us, failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, constitutes cause for excusing procedural default. The result, of course, is precisely the same.

Ah, but perhaps the explanation of why the Court’s action today amounts to praiseworthy self-restraint is this: It pronounces this excuse from the usual rule of proce-dural default only in initial-review state habeas raising an ineffective-assistance-of-trial-counsel claim. But it could have limited its invention of a new constitutional right to collateral-review counsel in precisely the same fashion—and with precisely the same consequences. Moreover, no one really believes that the newly announced “equitable” rule will remain limited to ineffective-assistance-of-trial-counsel cases. There is not a dime’s worth of difference in principle between those cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised: claims of “newly discovered” prosecutorial misconduct, for example, see Brady v. Maryland, 373 U. S. 83 (1963) , claims based on “newly discovered” exculpatory evidence or “newly discovered” impeachment of prosecutorial witnesses, and claims asserting ineffective assistance of appellate counsel. The Court’s soothing assertion, ante, at 14, that its holding “addresses only the constitutional claims presented in this case,” insults the reader’s intelligence. 1

Moreover, even if today’s holding could (against all logic) be restricted to ineffective-assistance-of-trial-counsel claims, it would have essentially the same practical consequences as a holding that collateral-review counsel is constitutionally required. Despite the Court’s suggestion to the contrary, see ante, at 13, the rule it adopts calls into question the common state practice of not appointing counsel in all first collateral proceedings, see ante, at 11–12. It does not, to be sure, call into question the lawfulness of that practice; only its sanity. For if the prisoner goes through state collateral proceedings without counsel, and fails to raise an ineffective-assistance-of-trial-counsel claim which is, because of that failure, defaulted, the default will not preclude federal habeas review of the merits of that claim. And since ineffective assistance of trial counsel is a monotonously standard claim on federal habeas (has a duly convicted defendant ever been effectively represented?), whoever advises the State would himself be guilty of ineffective assistance if he did not counsel the appointment of state-collateral-review counsel in all cases—lest the failure to raise that claim in the state pro-ceedings be excused and the State be propelled into federal habeas review of the adequacy of trial-court representation that occurred many years ago. 2 Which is to say that the Court’s pretended avoidance of requiring States to ap-point collateral-review counsel is a sham. 3

Of course even the appointment of state-collateral-review counsel will not guarantee that the State’s criminal proceeding can be concluded without years-long federal retrial. Appointment of counsel may, as I have said, avoid federal review of the adequacy of representation that occurred years ago, at the original trial. But since, under today’s opinion, the condition for exclusion of federal habeas is the very same condition that would apply if appointment of state-collateral-review counsel were constitutionally required, it will remain to be determined in federal habeas review whether the state-appointed counsel was effective. Thus, as a consequence of today’s decision the States will always be forced to litigate in federal habeas, for all defaulted ineffective-assistance-of-trial-counsel claims (and who knows what other claims), either (1) the validity of the defaulted claim (where collateral-review counsel was not appointed), or (2) the effectiveness of collateral-review counsel (where collateral-review counsel was appointed). The Court notes that many States already provide for the appointment of counsel in first collateral challenges—as though this proves that what the Court forces the States to do today is eminently reasonable. But what the Court fails to point out is that currently, when state-appointed counsel does not raise an ineffective-assistance-of-trial-counsel claim, that is the end of the matter: The issue has been procedurally defaulted. By virtue of today’s opinion, however, all those cases can (and where capital punishment is at issue assuredly will) proceed to federal habeas on the issue of whether state-appointed counsel was ineffective in failing to raise the ineffective-assistance-of-trial-counsel issue. That is the meaning of the Court’s (supposedly comforting) statement:

“It is likely that most of the attorneys appointed by the courts are qualified to perform, and do perform, according to prevailing professional norms; and, where that is so, the States may enforce a procedural default in federal habeas proceedings.” Ante, at 12 (emphasis added).

To be more precise, the Court should have said “where that is so, and where federal habeas courts have finally rejected claims that it is not so, the States may enforce a procedural default in federal habeas proceedings.”

I cannot possibly imagine the basis for the Court’s confidence, ante, at 12–13, that all this will not put a significant strain on state resources. The principal escape route from federal habeas—existence of an “adequate and in-dependent state ground”—has been closed. 4 Whether counsel appointed for state collateral review raises the ineffective-assistance-of-trial-counsel claim or not, federal habeas review will proceed. In practical effect, that may not make much difference in noncapital cases (except for the squandering of state taxpayers’ money): The defendant will stay in prison, continuing to serve his sentence, while federal habeas review grinds on. But in capital cases, it will effectively reduce the sentence, giving the defendant as many more years to live, beyond the lives of the innocent victims whose life he snuffed out, as the process of federal habeas may consume. I guarantee that an assertion of ineffective assistance of trial counsel will be made in all capital cases from this date on, causing (because of today’s holding) execution of the sentence to be deferred until either that claim, or the claim that appointed counsel was ineffective in failing to make that claim, has worked its way through the federal system.

B

The Court would have us believe that today’s holding is no more than a “limited qualification” to Coleman v. Thompson, 501 U. S. 722 (1991) . Ante, at 12. It is much more than that: a repudiation of the longstanding principle governing procedural default, which Coleman and other cases consistently applied. Coleman itself involved a habeas petitioner’s contention that his attorney’s failure to file a timely notice of appeal in his state habeas proceeding, which resulted in procedural default of the claims raised in that proceeding, was cause to excuse that default in federal habeas. 501 U. S., at 752. The petitioner in that case contended that whether a violation of his constitutional right to effective counsel had occurred was of no consequence, so long as the attorney’s conduct fell short of the effectiveness standard set forth in Strickland. See 501 U. S., at 753. Whereas Coleman flatly repudiated that claim as being inconsistent with our precedent, see ibid., today’s majority wholeheartedly embraces it, ante, at 11.

Rejection of the argument in Coleman was compelled by our jurisprudence pertaining to cause for excusing procedural default, and in particular Murray v. Carrier, 477 U. S. 478 (1986) . See Coleman, supra, at 752–753. Car-rier involved the failure of a defendant’s attorney to raise a claim on direct appeal. 477 U. S., at 482. This failure did not constitute cause, we explained, because it was not an “objective factor external to the defense.” Id., at 488 (emphasis added). This external-factor requirement reflects the judgment that States should not be forced to undergo federal habeas review of a defaulted claim unless a factor not attributable to the prisoner obstructed his compliance with state procedures. See id., at 487–488.

Although this externality requirement has been the North Star of our excuse-for-cause jurisprudence, today’s opinion does not whisper its name—no doubt because it is impossible to say that Martinez’s procedural default was caused by a factor external to his defense. Coleman and Carrier set forth in clear terms when it is that attorney error constitutes an external factor: Attorney error by it-self does not, because when an attorney acts (or fails to act) in furtherance of the litigation, he is acting as the petitioner’s agent. Coleman, supra, at 753; Carrier, supra, at 492. Any other rule would be inconsistent with our system of representative litigation, under which “each party is deemed bound by the acts of his lawyer-agent.” Irwin v. Department of Veterans Affairs, 498 U. S. 89, 92 (1990) (internal quotation marks omitted). But when attorney error amounts to constitutionally ineffective assistance of counsel, that error is imputed to the State (for the State has failed to comply with the constitutional requirement to provide effective counsel), rendering the error external to the petitioner. Coleman, supra, at 754; Carrier, supra, at 488. Accordingly, as Martinez himself appears to recognize, see Brief for Petitioner 22, our cases require that absent a determination that Arizona violated the Constitution by failing to provide effective counsel, attorney error cannot provide cause to excuse his procedural default. Rather than apply that rule here, the Court adopts the very approach Coleman explicitly addressed and rejected.

The Court essentially disclaims any need to give full consideration to the principle of stare decisis because Coleman did not involve an initial-review collateral proceeding for a claim of ineffective assistance of trial counsel. See ante, at 12. That is rather like saying that Marbury v. Madison, 1 Cranch 137 (1803), does not establish our authority to review the constitutionality of a new federal statute because it involved a different enactment. Just as the reasoning of Marbury was categorical, so was the reasoning of Coleman and Carrier: Attorney error is not an external factor constituting cause for excusing default unless the State has a constitutional obligation to provide effective counsel. Had the majority seriously considered the relevant stare decisis factors, see, e.g., Montejo v. Louisiana, 556 U. S. 778 –793 (2009), it would have had difficulty justifying today’s decision. Nor can it escape the demands of stare decisis by saying that our rules regarding the excuse of procedural default reflect an “equitable judgment” that is “elaborated in the exercise of the Court’s discretion.” Ante, at 10. Equity is not lawlessness, and discretion is not license to cast aside established jurisprudence reaffirmed this very Term. See Maples v. Thomas, 565 U. S. ___, ___ (2012) (slip op., at 12) (“Negligence on the part of a prisoner’s postconviction attorney does not qualify as ‘cause’ ” (quoting Coleman, supra, at 753)). “ ‘[C]ourts of equity must be governed by rules and precedents no less than courts of law.’ ” Lonchar v. Thomas, 517 U. S. 314, 323 (1996) (quoting Missouri v. Jenkins, 515 U. S. 70, 127 (1995) (Thomas, J., concurring)).

Noticeably absent from the Court’s equitable analysis, moreover, is any consideration of the very reason for a procedural-default rule: the comity and respect that fed-eral courts must accord state-court judgments. See Edwards v. Carpenter, 529 U. S. 446, 451 (2000) . The procedural-default doctrine reflects the understanding that federal review of defaulted claims may “circumvent the jurisdictional limits of direct review and ‘undermine the State’s interest in enforcing its laws.’ ” Lee v. Kemna, 534 U. S. 362, 388 (2002) (Kennedy, J., dissenting) (quoting Coleman, supra, at 731). Unlike today’s decision, Carrier and Coleman took account of the significant costs federal habeas review imposes on States, including the “reduction in the finality of litigation and the frustration of ‘both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” Carrier, supra, at 487 (quoting Engle v. Isaac, 456 U. S. 107, 128 (1982) ). Criminal conviction ought to be final before society has forgotten the crime that justifies it. When a case arrives at federal habeas, the state conviction and sentence at issue (never mind the underlying crime) are already a dim memory, on average more than 6 years old (7 years for capital cases). 5 I would adhere to the precedents that prevent a bad situation from becoming worse.

II

We granted certiorari on, and the parties addressed their arguments to, the following question:

“Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial 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.” Pet. for Cert. i.

While the Court’s decision not to answer the question did not avoid the costs a constitutional holding would have imposed on States, it did avoid the Court’s need to confront the established rule that there is no right to counsel in collateral proceedings. To avoid his procedural default, Martinez advocates in favor of an exception to this rule where the prisoner seeks the right to counsel in an initial-review collateral proceeding—an argument we have previously declined to address. See Coleman, 501 U. S., at 755.

The argument is quite clearly foreclosed by our precedent. In Pennsylvania v. Finley, 481 U. S. 551 (1987) , and Murray v. Giarratano, 492 U. S. 1 (1989) , we stated un-equivocally that prisoners do not “have a constitutional right to counsel when mounting collateral attacks upon their convictions.” Finley, supra, at 555. See also Giar-ratano, 492 U. S., at 10 (plurality opinion) (“[T]he rule of Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases”); id., at 14 (Kennedy, J., concurring in judgment) (indicating that the Constitution does not categorically require States to provide counsel to death-row inmates seeking state habeas review). Though Finley may have involved only claims that could have been raised on direct review, see 481 U. S., at 553; Giarratano, supra, at 24 (Stevens, J., dissenting), the Court was no doubt aware that States often limit “the collateral review process [to] issues that have not previously been litigated or argued on the direct appeal.” Brief for Respondent in Finley, O. T. 1986, No. 85–2099, p. 11, n. 5. And Giarratano, which involved a class action filed under 42 U. S. C. §1983, addressed the general assertion that the Constitution requires the appointment of counsel for collateral attacks on capital convictions. See 492 U. S., at 3–4 (plurality opinion). The Court rejected that assertion without qualification. The dissenting opinion, more-over, made the precise argument Martinez now asserts: under state law “some claims [including ineffective assistance of trial counsel] ordinarily heard on direct review will be relegated to postconviction proceedings.” Id., at 24 (Stevens, J., dissenting). See also Brief for Respondents in Giarratano, O. T. 1988, No. 88–411, p. 29, n. 8 (“In [Virginia capital habeas] proceedings, Death Row inmates seek to assert claims that have not been, and could not have been addressed on direct appeal . . . ”). Thus, in announcing a categorical rule in Finley, see Giarratano, supra, at 12 (plurality opinion), and then reaffirming it in Giarratano, the Court knew full well that a collateral proceeding may present the first opportunity for a prisoner to raise a constitutional claim. I would follow that rule in this case and reject Martinez’s argument that there is a constitutional right to counsel in initial-review collateral proceedings.

*  *  *

Far from avoiding the consequences a constitutional holding would have imposed on the States, today’s holding as a practical matter requires States to appoint counsel in initial-review collateral proceedings—and, to boot, eliminates the pre-existing assurance of escaping federal-habeas review for claims that appointed counsel fails to present. Despite the Court’s protestations to the contrary, the decision is a radical alteration of our habeas jurisprudence that will impose considerable economic costs on the States and further impair their ability to provide justice in a timely fashion. The balance it strikes between the finality of criminal judgments and the need to provide for review of defaulted claims of ineffective assistance of trial counsel grossly underestimates both the frequency of such claims in federal habeas, and the incentives to argue (since it is a free pass to federal habeas) that appointed counsel was ineffective in failing to raise such claims. The balance might have been close (though it would disregard our established jurisprudence) if the Court merely held that uncounseled failure to raise ineffective assistance of trial counsel would not constitute default. But in adding to that the rule that counseled failure to raise it may also provide an excuse, the Court creates a monstrosity. For these reasons, I respectfully dissent.

__________________________________

1  The Court also seeks to restrict its holding to cases in which the State has “deliberately cho[sen]” to move the asserted claim “outside of the direct-appeal process,” ante, at 10. That line lacks any principled basis, and will not last. Is there any relevant difference between cases in which the State says that certain claims can only be brought on collateral review and cases in which those claims by their nature can only be brought on collateral review, since they do not manifest themselves until the appellate process is complete? Our cases establish that to constitute cause for failure to raise an issue on direct review, the excuse must be “an objective factor external to the defense.” See infra, at 7. That the factual basis for a claim was not available until the collateral-review stage is no less such a factor than a State’s requiring that a claim be brought on collateral review. See Murray v. Carrier, 477 U. S. 478, 488 (1986) . The Court’s asserted limitation makes sense only if the opinion means that a State has “deliberately chos[en]” to move newly-arisen claims “outside of the direct-appeal process” if it fails to reopen the direct-appeal process in order to entertain such claims. Such a radical change in what we require of the States surely ought to be prescribed by language clearer than what today’s opinion contains.

2  The Court says that to establish cause a prisoner must demonstrate that the ineffective-assistance-of-trial-counsel claim is “substantial,” which apparently means the claim has at least some merit. See ante, at 11. The Court does not explain where this substantiality standard comes from, and how it differs from the normal rule that a prisoner must demonstrate actual prejudice to avoid the enforcement of a procedural default, see Coleman v. Thompson, 501 U. S. 722, 750 (1991) . But whatever the standard, examination of the adequacy of years-ago representation has been substituted for summary dismissal by reason of procedural default.

3  The Court also claims, ante, at 13, that its “equitable” ruling, unlike a constitutional ruling, will not require “a reversal in all state collateral cases on direct review from state courts” where counsel has not been appointed. Surely the Court does not mean to suggest that an un-constitutional failure to appoint counsel on collateral review, like an unconstitutional failure to appoint counsel at trial, would require the entire conviction to be set aside. That is inconceivable. So either one of two things would happen: Either the reviewing state court would be able to inquire into prejudice (which is an improvement over having the federal habeas court make that inquiry, as the Court’s “equitable” solution requires); or else the appellate state court will remand for a collateral proceeding with counsel (which is, as we have said, just what the Court’s “equitable” ruling effectively requires anyway). So the Court’s “equitable” ruling is no boon to the States.

4  See N. King, F. Cheesman, & B. Ostrom, Final Technical Report: Habeas Litigation in U. S. District Courts 45–49 (2007) (documenting the percentage of habeas petitions that included claims dismissed for various procedural reasons); Administrative Office of the United States Courts, Habeas Corpus Petitions Disposed of Procedurally During the 12-Month Period Ending September 30, 2011 (reporting that for appeals in noncapital state-prisoner habeas cases, procedural default accounted for the largest percentage of procedural dispositions, with the exception of the denial of a certificate of appealability) (available in Clerk of Court’s case file).

5  See King, Cheesman, & Ostrom, Final Technical Report, at 21–22 (reporting the average interval between state judgment and federal habeas filing for a sample of federal habeas cases filed in the early-to-mid 2000’s).

Print this transcript Transcript: 

ORAL ARGUMENT OF ROBERT BARTELS ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear case next in Case 10-1001, Martinez v. Ryan.

Mr. Bartels.

Mr. Bartels: Mr. Chief Justice, and may it please the Court:

In Arizona almost all State and Federal claims for relief from a criminal conviction are raisable in the Arizona Court of Appeals on direct appeal.

However, a claim that trial counsel was ineffective must be presented first to a trial court in what Arizona labels a post-conviction relief proceeding.

Petitioner agrees entirely with Arizona's requirement that ineffective assistance of trial counsel claims go initially to a trial court, and he does not object to the label "post-conviction relief" as such.

The issue in the case has to do with Arizona's insistence that Petitioner had no right to counsel with respect to the post-conviction first-tier review, portion of first-tier review, even though he did have a right to counsel in the appeal portion of direct review.

And our position is that that distinction between what are two portions of the first opportunity for review of a conviction, broken up sensibly but by dictate of the State into two parts, that that distinction cannot stand, especially in a case in which the first post-conviction proceeding started and ended before anything of substance happened in this--

Justice Ruth Bader Ginsburg: If your main position is right, then wouldn't the same go for 2255 proceedings?

I mean, this Court has said it makes sense to have the claims of ineffective assistance of counsel looked at by a trial judge first, not an appellate judge, and yet in 2255 proceedings, if you are urging ineffective assistance of counsel, you don't get an automatic right to counsel.

In 2255 proceedings, counsel will be appointed only if the court determines that the interests of justice so require.

So the proposition you are urging would have ramifications in the Federal system as well, wouldn't it?

Mr. Bartels: --That's correct, Your Honor.

Justice Ruth Bader Ginsburg: And so 2255 would no longer be the interests of justice so require because if it's your first opportunity to raise the point the court must appoint counsel for you.

Is that your view?

Mr. Bartels: In a situation -- The Federal system is a little more complicated than Arizona, but not much, because of Massaro.

Justice Ruth Bader Ginsburg: Because of the what?

Mr. Bartels: Our position would be in the Federal system, if a Federal defendant wished to file a 2255, that he would be entitled to appointed counsel, but as far as this case is concerned, only with respect to any claim of ineffective assistance at trial.

Justice Samuel Alito: Do you want us to hold that there is a right to counsel whenever a Petitioner asserts a claim that could not have been asserted at an earlier point in the proceedings?

Mr. Bartels: Yes, Your Honor, with the caveat, if the State allows that kind of proceeding.

One of the things I have a hard time keeping track of in this context is, unlike the right to counsel at trial, the Sixth Amendment right, where I think they have to give him a trial, we are dealing in a context where this Court made clear well over 100 years ago that there doesn't have to be any review at all.

The State--

Justice Samuel Alito: That's a very far-reaching proposition that extends well beyond claims of ineffective assistance of counsel at trial, wouldn't it?

Mr. Bartels: --Yes.

Justice Samuel Alito: If many years after someone is convicted an allegation is made that the prosecution failed to turn over exculpatory evidence and that the information supporting the claim has just recently come to light and could not have been previously discovered, there would be a right to counsel there; wouldn't that be the case?

Mr. Bartels: If the State -- if the State provided that proceeding, that -- then the State would not have to.

The State could have statutes of limitation or rules against excessive petitions that could be extremely strict if they are concerned about that.

Justice Ruth Bader Ginsburg: Why would it be excessive if it could not have been raised earlier?

Mr. Bartels: Your Honor, as I understand the situation, we've got newly discovered evidence of perhaps a Brady violation.

In that situation, if the State provides a proceeding for review of that, and it is the first opportunity for review, I think the implication of Douglas and Halbert is -- there would be a right to--

Justice Antonin Scalia: What if the State doesn't but the Federal government does?

I mean, what if you say, there is no State habeas available; you go straight to Federal habeas?

Mr. Bartels: --I think that's correct, Your Honor.

In the Federal system--

Justice Antonin Scalia: So you haven't really given us a solution for the States.

They can't -- they can't stop this thing.

Right?

Mr. Bartels: --Well, but the Federal system itself has a statute of limitation, though I believe that the statute would probably begin to run, in Justice Alito's hypothetical, with the discovery of a Brady violation.

So the Federal courts have set up the statute of limitations to accommodate that point.

And the States would be free to do that, too, if they wish.

Justice Ruth Bader Ginsburg: If you permitted this counsel to raise a claim that could not have been raised on the direct appeal, is the counsel limited to that point, or can the counsel representing the client bring up other things?

Mr. Bartels: No, Your Honor.

The right to counsel would apply only to the first-tier review issue.

And so, for example, if counsel finds other issues and wants to pursue them, the State could say: We're not going to pay you for those.

Justice Ruth Bader Ginsburg: But could it be that the counsel could also bring up a Brady claim, a newly discovered evidence?

It wouldn't be limited to ineffective assistance of counsel?

Mr. Bartels: The holding in this case won't be so limited, but I would agree that Douglas and Halbert would imply that Brady, at least many Brady claims, would be such that the 2255 or the State post-conviction would be the first opportunity to present.

Justice Samuel Alito: What if the -- I'm sorry.

What if the ineffective assistance of counsel claim is closely related to other claims that Petitioner wants to raise in an initial post-conviction relief proceeding?

Counsel at trial was ineffective for failing to do A, B, C and D, and all of those are bases for relief.

And now I want to argue with new counsel in the first post-conviction proceeding not only that counsel was ineffective at trial, but also that all these other claims are meritorious.

Are you saying that the counsel to whom the Petitioner has a right is limited to making only the ineffective assistance of counsel claim and cannot go on and represent the Petitioner on these other claims?

Mr. Bartels: I'm saying, Your Honor, that the State does not have any duty to pay the lawyer in those circumstances.

Now, the kind of situation you are talking about I think is most likely to come up where--

Justice Ruth Bader Ginsburg: It's not a question of pay.

I think Justice Alito was asking, counsel says: I've got a duty to represent my client zealously, so I want to bring up not only ineffective assistance of counsel, but these other matters.

Mr. Bartels: --Your Honor, I think the appointment could be limited to the first-tier review.

Chief Justice John G. Roberts: I'm sorry.

I don't understand how that works.

The claim is, say for example, you were ineffective because you didn't raise a Batson claim.

Surely he gets to review the Batson claim once he establishes the effectiveness--

Mr. Bartels: Yes, Your Honor, and in fact in that example pursuing the ineffective assistance claim requires pursuing the Batson claim.

Chief Justice John G. Roberts: --So the lawyer -- the State would be required to provide counsel not simply to raise the threshold ineffectiveness argument, but to go ahead and raise the arguments as to which he was ineffective.

Mr. Bartels: Well, Your Honor, in the situation in which the ineffectiveness of counsel is based on the failure to make a Batson claim, the failure to make an objection at trial, I would agree with you, absolutely.

In my experience--

Justice Antonin Scalia: What about other claims that don't follow on?

I mean, other claimed errors in the trial?

You say the State doesn't have to pay for that representation.

Does counsel keep time sheets on--

Mr. Bartels: --Yes, Your Honor.

Justice Antonin Scalia: --on the various issues, 12-minute intervals?

Mr. Bartels: Yes, Your Honor.

Justice Antonin Scalia: And the State pays for some issues and not for other issues?

Mr. Bartels: Absolutely, Your Honor.

It happens routinely in the State system.

The appointed counsel have to submit detailed billing statements.

Justice Sonia Sotomayor: How does this work now, counsel?

How are you proposing this work?

Right now in the Federal system a pro se litigant comes in and says: I have an ineffective assistance of counsel claim.

Most district courts say, ask the attorney to submit an affidavit, and then decides whether on the face of the claims there is reason to appoint counsel and hold a hearing.

Under your theory, every State would be obligated to appoint counsel ab initio to check out whether there is the potential for an [= IAC] claim?

Mr. Bartels: Well, I think the States could run this in different ways.

The way in which Arizona does it makes sense to me, which is that the -- there is a form, Form 24-B.

It's a very simple form.

It doesn't require stating any substantive grounds.

It really just says: I would like to challenge my conviction through post-conviction relief, in the very same way that notices of appeal--

Justice Sonia Sotomayor: So what you are essentially saying, every State is obligated to appoint an attorney on the first leg?

Mr. Bartels: --Every State is obligated to treat these, what are really parts of the appeal, the initial appeal, the same way they do the rest of the--

Justice Sonia Sotomayor: Counsel, there is a huge reliance interest that has developed since Finley and its progeny, and States don't routinely appoint post-conviction counsel.

Mr. Bartels: --I--

Justice Sonia Sotomayor: What are we going to do about that reliance interest and the burdens on States?

Mr. Bartels: --Well, Your Honor, I -- I guess I would say two things about that.

One, there are a fair number of States that do appoint counsel routinely on request.

Arizona is one.

Justice Sonia Sotomayor: Well, I know -- I know for a fact that most do in capital cases.

But I don't know if that's the same figure for non-capital cases.

Mr. Bartels: I don't know the percentage, Your Honor, but I know there are several States.

Justice Stephen G. Breyer: I don't understand.

Could you answer the original question that Justice Sotomayor asked?

She said: What happens in Arizona?

You said a prisoner, or defendant, he has been convicted, gone through his first round of appeal.

He is given a form, which you said was a simple form, do you want to proceed in collateral review?

And he answers yes.

Then does Arizona appoint a lawyer or not?

Mr. Bartels: Yes.

Justice Stephen G. Breyer: All right.

Then what are we arguing about?

He had his lawyer.

Mr. Bartels: He didn't have an effective lawyer.

Justice Stephen G. Breyer: Ah, so now you are talking about the second round.

You are talking about does he have a right to a lawyer when he wants to claim that the first lawyer that they gave him on collateral review was ineffective?

Mr. Bartels: No, Your Honor, that is not the issue in this case.

Justice Stephen G. Breyer: What is the issue?

Mr. Bartels: The issue in this case is whether the ineffectiveness of the first post-conviction counsel constitutes cause to excuse the--

Justice Stephen G. Breyer: All right.

So why -- that's what I thought, actually; and I don't understand what all the briefs are about, and I must be missing something, about whether they are all going to have to appoint lawyers or not in these different States.

It seems to me that has nothing to do with this case.

This case comes out of a State that does appoint lawyers and the question is whether you, your client, should have from your point of view at least one full, effective chance to say, every lawyer I have been appointed, I've gotten 100 and they are all terrible, and -- or whether the State can block that from being heard in habeas, by saying, oh, no, we gave him 19 and the claim that all 19 were ineffective, he can't even raise.

That's the issue, is that it?

Mr. Bartels: --Well, Your Honor, we are actually, once we take it past two, I -- I'm not on board with the hypothetical.

Justice Stephen G. Breyer: No, no, no -- but I'm not -- I'm not ridiculing as it sounded your claim.

I'm saying maybe that's right.

Maybe he's not going to win the claim, probably; but the question is, if his claim is in Federal habeas, I have gotten 102 lawyers in 102 proceedings and every one of them was absolutely ineffective, perhaps that habeas judge has to look at it and say oh, I see, he's claiming he never had one full effective chance to claim that his trial lawyer was ineffective because the other 19 was just as bad -- I have to look at it if I'm a trial judge.

Now, that is not a silly argument in my opinion; that could be a winning argument.

I just want to know is that basically your argument?

Mr. Bartels: No, Your Honor.

Justice Stephen G. Breyer: Okay.

Mr. Bartels: That is not my argument.

Justice Stephen G. Breyer: Now let's start at ground zero, sorry.

Everyone else--

[Laughter]

Justice Samuel Alito: Why isn't that where your argument leads, to the proposition that you can never procedurally default irrevocably an ineffective assistance of counsel claim?

Mr. Bartels: Well, Your Honor, on a theoretical level, I don't think this Court's decisions in Douglas and Ross and Halbert give us a clear answer about whether there's a right to effective assistance of second post-conviction counsel--

Justice Anthony Kennedy: But we want to know what rule you are advocating in this case.

Mr. Bartels: --I--

Justice Anthony Kennedy: We want to know why you are not advocating for what Justice Breyer and Justice Alito indicate is an endless right to claim that all previous counsel were ineffective.

You say oh, no, you are not arguing that.

What is the rule that you are arguing for?

What limiting principle do you have so that we do not have an endless right of counsel?

Mr. Bartels: --Well, Your Honor, the -- the theory that you get counsel for first-tier review limits it to that first tier, because when you go after the effectiveness of the -- of the first post-conviction counsel, that is necessarily going to involve review of the effectiveness of trial counsel.

Justice Anthony Kennedy: But -- I understand that.

But what is it that prevents the Petitioner from saying that the first counsel in the collateral proceeding was ineffective and that so was the second?

Mr. Bartels: Your Honor, I don't think there is a right to a counsel and therefore not a right to effective counsel in the second--

Justice Stephen G. Breyer: But you can -- you can have a -- you don't have to give him a counsel.

Look, the State did give him a counsel on first collateral review; that counsel was supposed to, according to him, raise the claim, my trial counsel was no good.

Now we go to the next round.

The State says: I'm sorry, you are on your own here; we are not giving you a lawyer anymore.

Okay.

That may count.

He now has to know he has to make the argument himself.

And therefore he goes and makes the argument himself, and now he's in habeas and he can argue they got it all wrong.

He's not blocked.

Mr. Bartels: --That's correct.

Justice Stephen G. Breyer: All right.

So what -- there isn't an issue in this case about giving people counsel, on that view.

There is an issue about if you do give them counsel, then they have to be able to have an argument later that you did it ineffectively.

That's a different matter; that's a question of whether you are blocked in habeas and can't even make the claim.

All right, forget it.

I will ask the other.

Mr. Bartels: Well, Your Honor, I think I'm on the same page with that example.

Justice Stephen G. Breyer: Yeah, okay.

Justice Samuel Alito: But there can't be a claim--

Justice Anthony Kennedy: Can I leave this argument with the judgment that you have offered me no limiting principle on how many proceedings there must be--

Mr. Bartels: Well--

Justice Anthony Kennedy: --before there's an end to the argument that previous counsel were inadequate?

I understand, this is the -- in this case it was the first counsel in -- in the first collateral proceeding that we are talking about.

But why couldn't it be the second?

You don't give us a limiting principle.

Mr. Bartels: --Well, Your Honor--

Justice Anthony Kennedy: And if you want to say there shouldn't be, then that's fine.

Mr. Bartels: --No, Your Honor, there shouldn't.

And the merits -- the Petitioner's merits brief devoted quite a few pages to both the theoretical problems with the infinite continuing of litigation and the practical limitations.

And let me -- let me turn to the practical ones.

Justice Elena Kagan: So Mr. Bartels, before you do that, I mean, I understood you to be saying that you would draw a line after the first post-conviction proceeding; is that correct?

Mr. Bartels: Yes, that's correct.

Justice Elena Kagan: And the briefs go back and forth as to whether that line -- you know, what lies behind that line.

But you would draw the line there?

Mr. Bartels: Yes, Your Honor, theoretically.

And the State has the wherewithal, given McKane, to draw the line anywhere it pleases.

It could just say you get one post-conviction.

Justice Samuel Alito: --What I understand you to be saying is exactly that.

A line has to be drawn somewhere; enough is enough; it can't go on forever.

Mr. Bartels: Yes.

Justice Samuel Alito: And the sensible place to draw the line in your view is after the first-tier review; that's your argument, right?

Mr. Bartels: Yes, Your Honor, because I--

Justice Samuel Alito: The problem with that is you can answer that by saying: Yes, we have to draw a line someplace and the Court has already done that, and it did it in Douglas and it was after first tier of review on direct appeal.

It's exactly the same argument, except where the law stands now the line is drawn at a different place on the same principle.

It has to be drawn someplace.

Mr. Bartels: --Well, Your Honor, that principle doesn't work very well in a system like Arizona's where you can't bring this one claim on the direct appeal, and you can -- and Mr. Martinez, well, couldn't -- you can file your first post-conviction and litigate it while the appeal is pending before it's final.

Chief Justice John G. Roberts: So you would be happy with a system that said, no, you don't have to raise it in collateral review, you have to raise it on direct appeal, which is very unworkable, because if you are arguing ineffective assistance of counsel in a direct proceeding, presumably it's usually the same counsel; he's not likely to bring the claim.

That would be worse for criminal defendants than the system--

Mr. Bartels: Well--

Chief Justice John G. Roberts: --that's there now.

Mr. Bartels: --No, Your Honor.

The -- if direct appeal is now going to encompass possible claims of ineffective assistance, you are not going to be able to have the same counsel on appeal.

Chief Justice John G. Roberts: Well, but the person who decides what arguments you are going to make on appeal is usually the person who handled the trial in these types of cases.

Mr. Bartels: Well, Your Honor, that's not true in Arizona.

Chief Justice John G. Roberts: In Arizona, the usual case in criminal cases is that somebody else handles the appeal on direct proceedings?

Mr. Bartels: It may be from the same office.

But I agree that that would have to change if ineffective assistance of counsel were part of the direct appeal.

And the other thing that would have to be done -- and this is done in some States -- is that you have to raise it in direct appeal, but most -- as this Court recognized in Massaro -- most ineffective assistance claims cannot be dealt with on direct appeal because of a lack of evidence.

They need more evidence.

Justice Antonin Scalia: Ineffective assistance of appellate counsel certainly can't be dealt with on direct appeal; right?

Mr. Bartels: No, that's correct.

Justice Antonin Scalia: So even if you get a different counsel to -- to take the appeal, you could always claim that that counsel was ineffective in habeas, right?

Mr. Bartels: Your Honor, I -- two things about that.

First of all, the State does not have to provide the review of the effectiveness of appellate counsel.

If it does so, I would still say that that's going to end up having to be second opportunity review of the claims that appellate counsel failed to raise.

That's got to be the basis for--

Justice Samuel Alito: If there is a right to counsel whenever someone asserts a claim that couldn't have been raised earlier, why does the State not have the obligation to provide counsel to contest the constitutionality of the representation that was provided on appeal?

Mr. Bartels: --Well, Your Honor, the -- the reason is that -- in terms of this first tier, second tier analysis from Douglas and Halbert, you are not going to be able to look at the effectiveness of appellate counsel without looking at the issue of prejudice.

And that's going to require what is second opportunity review of the merits of the claim that the appellate lawyer didn't raise.

But that's the second opportunity for that review, because the direct appeal was the first opportunity.

I think in the end, though, just a Mathews v. Eldridge procedural due process analysis works better.

And the critical factor is what's the risk of an error in the absence of counsel?

Well, the first time around, the risk of your -- involves the probability that the trial judge made a mistake that's prejudicial.

By the time we get to the post-conviction challenging appellate counsel's effectiveness, now it's the probability that the trial judge was wrong and that the appellate lawyer was wrong.

And so it's exponentially lower -- that at least provides a basis for--

Justice Samuel Alito: A trial judge doesn't have to be wrong for there to be ineffective assistance of counsel claim at trial?

Mr. Bartels: --No.

No.

I'm sticking with the example of ineffective assistance of appellate counsel.

Trial counsel -- I'm sorry.

Justice Elena Kagan: I was wondering what you would say -- some of these statistics is just that these claims succeed very, very rarely.

So by the analysis that you just used, this kind of balancing analysis, why we should even go so far as you would have us go?

Mr. Bartels: Well, Your Honor, it would be because Douglas and Halbert have done that balancing in saying that in this situation, the first tier review, the probability of an incorrect result without counsel is sufficiently high that there should be counsel.

And that's really the disagreement between Justice Douglas and Justice Harlan in Douglas.

Justice Harlan didn't think the lawyers mattered--

Justice Ruth Bader Ginsburg: So the -- post-conviction application would go to the trial judge; right?

And on the--

Mr. Bartels: --Yes, Your Honor.

Justice Ruth Bader Ginsburg: --So both in the trial judge with this Anders type speech that doesn't raise ineffective assistance of counsel, but it's such an obvious claim to make that when the -- when the judge reviews that brief, if the trial judge thought that this defendant was abysmally represented, wouldn't -- wouldn't the Court say, sorry, I'm not going to accept this Anders speech.

It seems to me you -- there was enslavement -- ineffective assistance of counsel, and you should raise that.

That's a viable issue, so I'm not going to accept your briefs.

Mr. Bartels: I think there would be something like that with the right to counsel for these ineffective assistance of trial counsel claims.

Justice Ruth Bader Ginsburg: If the judge reviews the Anders review of ineffective assistance of counsel claims, a valid one, the judge would have spotted these issues, and it would have been -- it would have been argued on that first--

Mr. Bartels: Are we talking about the Martinez case itself?

Justice Ruth Bader Ginsburg: --Yes.

If -- in the Martinez case, there was an Anders brief, right?

Mr. Bartels: There was, Your Honor, but it was nothing but a summary of the trial transcript, and provides no basis for the trial court -- the problem with ineffective--

Justice Ruth Bader Ginsburg: Doesn't the trial court, I mean the excuse -- the excuse of counsel is not automatic, the trial judge has to look at it and say, no, there is -- there's no issue for you to pursue, so I'm going to excuse you.

Mr. Bartels: --Well, under the current system, the trial judge has no duty to make any Anders determination because the Arizona courts have upheld there is no right to effective appointed counsel.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Cattani?

ORAL ARGUMENT OF KENT E. CATTANI ON BEHALF OF THE RESPONDENT

Mr. Cattani: Mr. Chief Justice, and may it please the Court:

I would like to focus on three points.

First, petitioner is advocating a significant change to this Court's jurisprudence that does implicate the State's reliance interest on Finley and Giarratano.

It's not a minor change--

Justice Elena Kagan: Mr. Cattani, can I ask about your interests here, because your State is one that does appoint counsel.

So you already have the costs there.

I'm just wondering, in your brief, you talk a lot about the excessive costs that this would impose on you.

And I'm just wondering where those costs come from if you appoint counsel already.

And I know some other States are in a different situation, but as to you, where do the costs come from?

Mr. Cattani: --I think they come primarily from the logical extension of the rule that would require a second post-conviction proceeding to eliminate the claims of ineffective assistance of post-conviction counsel.

Right now, those claims are routinely rejected under Finley and Giarratano because there is no constitutional right to counsel.

Under the theory and -- I don't think there's really been advanced a principled basis for limiting the rule that's been advanced, and certainly--

Justice Elena Kagan: Well, if we just said there is, you know, we can only draw a line in this context and we're going to draw the line here, and this is where it sticks.

What are the additional costs to you?

Mr. Cattani: --The additional costs would be implicated with a second post-conviction proceeding.

Justice Sonia Sotomayor: Well, it's only a cost if that second counsel, however its secured, can actually make a credible or sustainable claim that appellate counsel, the first tier counsel, was ineffective.

Mr. Cattani: I think it's -- if the nature of ineffective assistance claims, they are easy to raise and difficult to litigate.

It's -- it's not difficult to raise -- to assert ineffective assistance.

It's very obvious in capital cases where an assertion is my attorney was ineffective at sentencing for failing to raise--

Justice Sonia Sotomayor: Federal courts handle them routinely.

Mr. Cattani: --Pardon me?

Justice Sonia Sotomayor: Federal courts handle them routinely on papers, and most of them are denied.

Is the State system different?

Where first level counsel, appellate counsel, post-conviction counsel raises ineffective assistance of trial counsel.

How many of those cases end up in hearing?

Mr. Cattani: I don't -- I don't have the statistics.

They do not generally result in -- in evidentiary hearings.

Justice Sonia Sotomayor: Exactly.

Very few.

Mr. Cattani: In noncapital cases.

Certainly in capital cases, I think the majority do.

Justice Sonia Sotomayor: Can I go back to just clarify the record for a second?

What authorized Levitt to file the post-conviction relief motion?

Wasn't he appointed simply to prosecute the direct appeal?

Mr. Cattani: At hearing, Levitt was appointed to prosecute the direct appeal.

Justice Sonia Sotomayor: What gave him the authority to file the 32 motion?

Obviously, he didn't seek his client's approval because the client when he received it said: I don't understand what you are saying; I only speak Spanish.

So what gave Levitt the authority to do what she did?

Mr. Cattani: Well, she was representing Emitz and Martinez, and the rules allow the filings of both convictions petitions.

Justice Sonia Sotomayor: By an attorney appointed just on the direct review?

Mr. Cattani: Well, I don't think there is anything that would prevent her from representing him in a number of different ways.

If she saw something that she thought needed to be raised in a post--

Justice Sonia Sotomayor: So what would have been -- what was the tactical advantage of doing what she did?

What conceivable reason was there for her to file the rule 32 motion before direct review finished?

Mr. Cattani: --I don't know that there was necessarily a tactical reason.

The reason would be in some cases that if an attorney views the case as having a potentially meritorious issue on post conviction, you get relief earlier.

Justice Sonia Sotomayor: Well, you know that she didn't.

So answer my question.

What reason did Levitt have, strategic or otherwise, to file the rule 32 motion?

Mr. Cattani: I don't know that she had one.

But there was some indication in the record that there was some evidence that she wanted to raise an issue that the victim's diary would have contained some exculpatory information, and that would have been something that would have had to have been developed in a post-conviction brief.

Justice Sonia Sotomayor: But she files essentially an Ander's brief that says: I don't see anything.

What was the strategic reason for doing that?

What conceivable strategic reason?

Mr. Cattani: If she thought that there would be a claim, that after looking at it further, decided that the claims were not tolerable is, I think, what happened in this instance.

Chief Justice John G. Roberts: Is it routine, or does it happen often that lawyers who perceive a trial issue that can only be raised on collateral review to think that it makes sense to raise that right away so that the appeal -- and then the appeal is delayed until that's resolved?

Mr. Cattani: It is what happened in Arizona.

Frequently, prior to the Spreitz decision.

And historically counsel was allowed -- counsel were allowed to raise claims of ineffective assistance and stay the appeal.

And that was the practice previously.

So it is not necessarily unusual that an attorney reviewing the record might decide that there are some issues that could be raised in post conviction.

Justice Stephen G. Breyer: All right.

This is not -- We will say this is my argument.

I don't want to make this your friend's argument.

In Arizona there was a trial, and the defendant thinks trial counsel was inadequate.

Then there was a collateral review, and Arizona appoints a lawyer for that.

And after that, the Arizona courts thought, no, he was adequate at trial.

This particular defendant wants to say that that lawyer was inadequate, too.

In fact, it was the same one.

Hardly surprising.

That's his view.

Now when he makes that argument in Federal court, I guess he's going to be met with the claim, since Arizona didn't have to appoint the lawyer for collateral review, it doesn't matter what that lawyer does.

Is that right?

Mr. Cattani: Well, I think it's better viewed through the lens of procedural due process.

We are looking at what are the procedures that are available to a defendant to raise a claim of ineffective assistance of trial counsel.

One of the ways that you can do that, that certainly goes a long way to satisfying procedural due process, is appoint counsel.

It could be accomplished without appointing counsel, certainly having somebody--

Justice Stephen G. Breyer: Don't guess where I'm going here.

Maybe nobody wants to go there.

Just follow the questions.

The question is, if he tries to make the claim he does, want to say that my first lawyer was no good at trial, and my second lawyer, who by coincidence was the same in the collateral proceeding, was no good either, then the State comes in and says: You can't make that argument now because we had a proceeding called the collateral review proceeding; we didn't have to give you a lawyer there.

But even if that lawyer was inadequate, you lose because we didn't have to give you one.

Am I right about that?

That's all I want to know.

Mr. Cattani: --Well, I think you're -- you're not right from the standpoint that we do have to provide procedural due process.

And the question is whether that was enough.

Justice Stephen G. Breyer: All right.

You know.

I'll answer it.

You say that is enough to give him a lawyer.

Okay?

It is enough.

But you have to give him an adequate lawyer if you give him one.

If you give him one.

You don't have to give him one.

But if you give him one, it has to be adequate.

Now what about that?

Mr. Cattani: Well, I think that goes well beyond this Court's previous--

Justice Stephen G. Breyer: But would that is done.

But that's where I think we are at.

Now why not say this, that every defendant has to have one fair shot at claiming, they can make the claim that his trial lawyer was inadequate.

And the State doesn't have to give him the lawyer at collateral review; but if it does, then that lawyer, he can say, couldn't make that claim because he was inadequate.

So you say, fine, they can make that argument in habeas.

I bet they never win.

But somebody might.

He can make it.

So what would happen would be that the habeas judge in Federal habeas would read the piece of paper.

He'd say: What's the ground for thinking this, and then he would make his normal kinds of judgments.

Now what is -- Is there anything wrong with that view?

Is it absolutely blocked by precedent?

It seems to me it would relieve the concerns of the states about worrying about having to appoint a lot of lawyers, and it gives him a fair shot to make his argument.

Mr. Cattani: --I think it is blocked by precedent, certainly by F and Giarratano.

Justice Stephen G. Breyer: Because?

Mr. Cattani: The problem with just shifting -- because this Court has said that there is no right to counsel and thus no right to the effective assistance of counsel, and--

Justice Stephen G. Breyer: Well, that's where you would have to make the exception.

You'd say: If you give him a counsel, he does have the right to an effective assistance of counsel insofar as the ineffectiveness would prevent him from raising a claim that to be fair the trial itself has to be -- he has to have that about the trial itself.

Without exception, it would be that exception.

Now is there something in those cases that blocks that exception?

Mr. Cattani: --Well, I think it does create an infinite continuum.

Justice Stephen G. Breyer: Well, in a sense it does, but he's never going to win the infinite continuum.

Mr. Cattani: But the other problem with it is--

Justice Stephen G. Breyer: You never have to give him a lawyer at all.

Mr. Cattani: --That's correct, but if you don't, then the problem is you shift over to Federal court, and on Federal habeas you are then in the position of litigating claims that are untethered to any State court decision.

And when we talk about whether it's blocked by current precedent, certainly under Edwards v. Carpenter to allege ineffective assistance as cause to overcome a procedural default, there is a requirement that you litigate that claim in State court.

Justice Samuel Alito: The question is whether there is cause external to Petitioner to overcome procedural default.

If you went down that road, with Petitioner representing himself or herself, not have to show that: I would have raised a claim of ineffective assistance of trial counsel and I would have won on that were it not for the fact that the State appointed counsel for me and led me astray and prevented me from raising this meritorious argument.

Isn't that where that would have to go?

Mr. Cattani: Well, I think it would, but it's even more problematic here in that the procedure is that the attorney files a notice, gives a notice to the defendant that she's been unable to find any tolerable claims and gives the defendant an opportunity to file his own pleading.

So it's somewhat illogical to think that if we just grant a second post-conviction proceeding that the defendant is going to be in any better position than he's in, in this type of situation where he's advised that the attorney says that, as is routinely the case, I am unable to find tolerable claims, and then the defendant is given an opportunity to file his own petition.

Justice Ruth Bader Ginsburg: And how much time in the procedure you described, when appointed counsel does inform Martinez: I'm not bringing up any claims for you, so if you want to pursue relief you have to do so on your own.

How much time does the defendant have?

How much time remains?

Mr. Cattani: I don't recall the specific time.

I believe it is in the brief.

I'm sorry, I don't recall the number of days that were remaining.

But certainly a defendant can request additional time if the period of time is very short at that point.

Extensions are routinely granted in those circumstances.

Justice Elena Kagan: Mr. Cattani, if you handled this through the regular appeals process, the person would receive the benefit of counsel.

Is that correct?

Rather than shuttle this over to the post-conviction review process?

Mr. Cattani: Well the person -- Here he received the benefit of counsel because it's appointed in Arizona.

He receives the benefit of counsel.

If your question is: Would he be entitled to the effective assistance of the attorney developing that record?

Justice Elena Kagan: Yes, exactly right.

Mr. Cattani: I don't think so necessarily.

I think that's a different.

I think of the attack on the effectiveness of collateral review of trial counsel is itself a collateral attack.

And I think under Finley and Giarratano, and I think the distinction this Court has drawn between direct review and collateral attack is one that should be maintained.

And in theory--

Justice Anthony Kennedy: But those -- those were--

Justice Elena Kagan: Try--

Justice Anthony Kennedy: --cases in which you could not raise -- pardon me, in which you could raise the particular issue at hand.

But that's not this case.

Mr. Cattani: --Well, I don't think it's ever--

Justice Anthony Kennedy: The question is whether or not the rationale of those cases, which you state correctly, is applicable to a different set of circumstances.

Mr. Cattani: --Well, I'm -- I'm not sure I'm following, because I think the procedure that errs on the following is -- is something that was in place at the time of Finley and Giarratano.

What -- what Arizona does is not extraordinary; it really follows what has been recommended in Massaro, that -- that claims relating to--

Justice Anthony Kennedy: But -- but those were, correct me if I'm wrong, cases -- those were not cases in which the issue could only be raised on collateral.

Mr. Cattani: --Well, I think in -- in Massaro this Court noted that it -- it would be rare for any -- for any -- for a defendant to be entitled to relief on a claim that could be raised on direct appeal.

Justice Elena Kagan: --Well, Massaro indeed said there are good reasons for withdrawing this issue and putting it in a different kind of process.

So suppose the State does this, and some States do it: they say on -- in the direct appeal process, we are going to remand this issue back to the trial court because the trial court is going to be fast and can make an evaluation.

That's part of the direct appeal process, this -- this remand.

Would the person then be entitled to effective assistance of counsel?

Mr. Cattani: That's -- it's a difficult question.

I -- I don't think they would, because I think it's still a collateral proceeding to address the -- the effectiveness of trial counsel.

Justice Elena Kagan: Even though now it's part of the regular appeals process.

It's just the way -- because of the issues that we recognized in Massaro, the State has decided to structure things in this way?

Mr. Cattani: Well, I think more important than the -- than the label that's been put on it is the nature of the -- of the argument that's being advanced, and it's a collateral attack, whether it -- whether the State choose to call it as part of the appeal.

What happened in Arizona previously was that it would be--

Justice Elena Kagan: So now you are creating a different rule.

You are saying anything which somebody determines is appropriately raised as a collateral attack, even if there's been no first review of that question, there is no entitlement to counsel?

Mr. Cattani: --Well, I think that's the -- the logical extension of what this Court announced in Finley versus -- Finley and Giarratano, that we -- we've drawn this distinction between--

Justice Elena Kagan: Well, I don't think as Justice Kennedy says that we ever really considered that question in Finley and Giarratano, because we were assuming there that all the things had been through the appeals process.

Mr. Cattani: --But I guess I'm not certain that the timing would -- would make a difference of when -- of whether you had a direct appeal first or whether the collateral proceeding occurs first.

In either case the collateral proceeding is a non-record-based attack on the conviction as opposed to the direct review which is a record-based review of the conviction.

So that the timing I don't think is as important as the nature of what's happening; it's a non-record based attack on the conviction.

Justice Anthony Kennedy: Well, Justice Kagan's question indicates that there are States, as you know, where on direct appeal they can allow for an evidentiary hearing on IAC.

And as I understand your answer, is if that happens the proceedings that precede the resolution of the issue on direct appeal, being probably conducted by the same counsel who is taking the direct appeal, can be conducted and he can be -- and the counsel, he or she can be inadequate in the conduct of those further inquiries.

That seems to me very strange.

Mr. Cattani: Well, I don't think we are suggesting that would be the desired outcome.

And -- it's simply that drawing the distinction between collateral--

Justice Anthony Kennedy: You are suggesting that there is no constitutional right to effective assistance of counsel on direct, when he conducts some supplementary proceedings.

That's very strange.

Mr. Cattani: --I guess the suggestion is that it's a collateral, that's a collateral proceeding.

If you stay the proceeding and go back and address ineffective assistance that that would essentially be a collateral proceeding.

Justice Sonia Sotomayor: You mean -- that makes no sense to me.

That happens quite frequently on direct appeal where a variety of issues are raised and the court -- the circuit court or the appellate courts send it back to trial counsel to develop the record further.

Your position is every time there is a sending back, that stops the need for effective counsel?

Mr. Cattani: If they've sent something back for a new hearing, I think that's something different.

I think you--

Justice Antonin Scalia: Is that involved in this case?

Do we have to decide this for this case?

Mr. Cattani: --I don't think we need to.

I think it's clear--

Justice Antonin Scalia: It's another case.

It's--

Justice Elena Kagan: Well, the reason I think it's relevant is that if you were to say that there needed to be effective assistance of counsel there, then I would have asked you, what is the difference between this case and that case?

So that's the reason it is relevant to this case, because the difference is really just one of just labels.

Mr. Cattani: --Well, and that's why I think it's more important to -- to assess the inquiry that's being done, whether it's a collateral inquiry as opposed to whether we are labeling it part of the -- the direct appeal or not.

And if it is a collateral inquiry, then it makes more sense I think to -- to couch it in terms of this is a collateral review.

Justice Antonin Scalia: --There seems to me a rational line between collateral attack and attack in the same proceeding.

I don't see anything irrational about that.

Right?

Mr. Cattani: Uh--

Justice Antonin Scalia: Yes !

Mr. Cattani: --Yes, I agree.

Yes.

[Laughter]

Justice Ruth Bader Ginsburg: Would you explain to me why don't we consider this adverse boost to your proceeding, because this post-conviction proceeding, it began -- it began the same time as the direct appeal, but it ended before this case became final.

So it was a first -- it was a first tier, because it was decided before the direct appeal.

Mr. Cattani: Well, it is a first-tier collateral attack.

I would agree that it's the first tier.

That's the first time that this issue is raised in a collateral attack.

But I don't -- I don't think that's determinative of the issue here.

This Court has never -- has never said that every claim that can only be raised for the first time entitles someone to -- to counsel.

And that exception, that would -- that would swallow the rule.

In Arizona, in most States where the types of claims that can be raised in post-conviction proceedings are generally limited to claims that could not have been raised earlier.

So the rule that Petitioner is seeking really would swallow -- the exception would swallow the rule that was announced in -- in Finley -- and Giarratano.

Chief Justice John G. Roberts: Thank you, counsel.

No, you've got to listen to the government.

Mr. Wall.

ORAL ARGUMENT OF JEFFREY B. WALL, ON BEHALF OF UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

Mr. Wall: Mr. Chief Justice, and may it please the Court:

Justices Sotomayor and Kagan, I want to go to your questions about the costs, because there are some very real costs here.

We live in a world that is settled and working.

Although this Court has drawn the line at the first direct appeal, 47 States, D.C. and the Federal Government provide counsel in a first post-conviction proceeding, either as a right or in the discretion of the trial court as public defender.

Justice Sonia Sotomayor: 47 States and the Federal Government does?

Mr. Wall: That's right.

So there are 18 States that provide it as a right, 29 States and D.C. provide it in the discretion of the trial court and the public defender, and the Federal Government obviously in the discretion of the district courts.

And so what Petitioner is doing, by its constitutionalizing that area, is shifting resources to a subset of ineffectiveness claims.

Chief Justice John G. Roberts: Well, it's pretty -- it's small comfort to the lawyer who -- declined, who doesn't get one, that everybody else does.

Mr. Wall: Mr. Chief Justice, I understand, but I think this is an area where States are permitted to draw different lines, and what Petitioner is saying -- take the Federal system, for example.

Petitioner's rule would say a Federal prisoner can walk in under 2255 and by making an allegation of ineffectiveness, of either trial or appellate counsel, he is entitled to appointed counsel, without even I take it a showing of colorableness.

Justice Anthony Kennedy: Well, not if you adopt the -- the one proceeding rule that I think counsel for the Petitioner was suggesting.

He suggested Arizona is one of those few States where you could only raise this issue on collateral, and therefore you are entitled to effective assistance of counsel on that trial.

And he would stop there, for statistical and for -- reasons, for probability reasons, rather.

Mr. Wall: I think that is exactly where he would stop.

I think it's very difficult to explain why his rule doesn't require him to go further, because by saying the first tier is not a stage of a case, as this Court has always meant it, but it applies claim by claim, and lawyers are going to represent you only on some claims, and you're -- pro se you will file others -- he ends up with two problems.

One, he has to concede as he does in his reply brief and as he did in response to Justice Alito, that he is going to say the same thing with regard to a lot of other claims that are typically raised in habeas; and second, he can't find a limiting principle.

Because when you come in your second or your third or your post-fourth conviction proceeding, and you say all my previous counsel has been ineffective, that is also the first time that you have been able to say it; and you will be making the same claim: I am entitled to have one constitutionally competent lawyer argue that my trial counsel is ineffective.

Justice Stephen G. Breyer: What about not going that far?

What about saying in this case -- in this case, Arizona did give him a lawyer.

In this case, it was the same lawyer.

In this case, the proceeding was filed prior to the completion of the appeal and ended before the completion of the appeal.

So for this case, this counts as the one round of proceedings, and therefore, his client can in fact assert that that single individual who was his lawyer was incompetent in those proceedings that ended -- didn't end prior to the termination of the appeal, ended first?

Mr. Wall: Here's the primary problem with that, Justice Breyer.

This Court said in Coleman, and before that in Murray v. Carrier and in Wainwright v. Torna, that if you don't have a Federal constitutional right to counsel and the States or Congress go beyond what they are constitutionally required to do when they give you a lawyer, that performance does not thereby give rise to a due process claim.

Justice Stephen G. Breyer: No, but it didn't face the issue of what about a claim that you have a constitutional right to bring up at least once?

And this is the first time he was able to bring it up.

So in other words, Coleman didn't face this problem.

It's as if you couldn't bring up the claim that the judge was sleeping until he got the collateral proceedings.

A State could have such a rule -- I don't know why they would, but they could.

But if they did, it would be your first chance ever to attack that file process, and so isn't Coleman, in its effort to bar relitigation, actually rather beside the point?

Mr. Wall: Justice Breyer, I think we just see the case in fundamentally different ways.

His first opportunity to raise his trial's ineffectiveness claim was in his first post-conviction proceeding, and he had the opportunity to raise it and his lawyer didn't.

And what he's coming in and saying now is not I was deprived of an opportunity to raise it, as in Europe, but I had the opportunity and I didn't--

Justice Stephen G. Breyer: No, we are saying it the same way, just as if his lawyer, when he could raise the fact that the judge was sleeping, didn't raise it because he was staring at the ceiling and had been drinking too much.

Just as he could raise that point in habeas, because it's his first chance to do it, so he could raise the point that the lawyer, the first time that he had the chance to raise the ineffectiveness of trial counsel, was incompetent, et cetera.

Mr. Wall: --Justice Breyer, I think this case presents a much narrower question, which is, when he comes in, in his second post-conviction proceeding and says although I didn't raise it last time around, I have cause to excuse that default because my lawyer was ineffective.

This Court's been clear in three different cases -- that is only cause if he had a constitutional right to counsel in a proceeding that he's pointed to and that he complains about.

So the question--

Justice Sonia Sotomayor: What you haven't told me is a reason why he shouldn't have had effective counsel in the first post-conviction proceeding?

I mean, our entire line of cases under Douglas were premised on the fact that defendants would not be or couldn't be charged with the ability to prosecute their claims through direct appeal.

Discretionary appeal, we said the likelihood is they could do it on discretionary appeal because they would have a record from below, they would have competent counsel below who would make the best arguments possible, they could then pursue their discretionary appeals because they had something to work with.

But if your first chance is to present ineffective assistance of counsel claim is a post-conviction proceeding, you have no record to work with.

Mr. Wall: --That's right.

Just so -- I think this is a very different case from Douglas and Halbert, which were grounded in a fairly fundamental equal protection concern, that indigent defendants would be denied a first look -- maybe an only look -- at their convictions and sentences.

Here, we're facing something very different.

States like Arizona are giving direct appeals; defendants are getting looks at their convictions and sentences, as petitioner did, they're providing post-conviction review.

Justice Elena Kagan: But they didn't -- only the first--

Mr. Wall: They are even providing lawyers in post-conviction review--

Justice Elena Kagan: --Look at the effective assistance claims.

So what you say, Mr. Wall, if the Stated did the following -- if it said we are going to take out all Fourth Amendment exclusion claims and we are going to put that in the post-conviction review system, and you know what, there, you are not entitled to an effective lawyer.

Would that be all right?

Mr. Wall: --Justice Kagan, I think there are any number of claims, that if a State tried to pull them out of direct appeal and locate them in collateral review, we might be able to say it's then running its obligation under Douglas because those are the types of claims based on a trial record that ought to be -- and always have belonged to direct appeal.

The question is did the State act arbitrarily when it takes an ineffectiveness claim.

So the only type of claim that the State is trying to relocate into collateral review and--

Justice Elena Kagan: I'm sure the State would not say it was acting arbitrarily in my example.

The State would say there is a good reason for it, the Fourth Amendment exclusion claims are disfavored, they have nothing to do with innocence; they involve a kind of fact-intensive inquiry that is better done in a different proceeding.

So I think that the State would have many good reasons, but, you know, it's also true that there, you don't get a lawyer.

Mr. Wall: --Justice Kagan, I just -- I think the Court's case law would -- I mean, I think it would be a different question; the Court having said that under Stone, at least in the Federal system, the Fourth Amendment claims can't be raised on habeas because it would be difficult for a State to come in and say they have to be raised in habeas.

Here, the Court said in Massaro these claims are best suited to resolution in habeas, and they are claims that are traditionally brought in habeas.

And at least for that type of claim, which is the -- I mean, the State's not trying to hide the ball here.

All the State has done was take a claim that this Court has said belongs in habeas and say we are putting it in habeas, not in a Federal system where although people can raise it as a practical matter, they're all decided on collateral review -- virtually all of them.

It says, we are just going to say people have trouble briefing and raising it and we will relocate it to collateral review, not for ambiguous or arbitrary reasons but for all of the reasons that this Court gave in Massaro.

So at least for that type of claim, I think it's permissible under the Fourteenth Amendment leaving for another day whether they could do it with other types of claims -- that I do think probably belong to a direct appeal.

And that would present very different constitutional problems if a State started trying to channel them to collateral review, but -- all Arizona has done is pick up on Massaro and say absolutely right, these claims belong in habeas, and that's where we are going to put them.

And collateral review--

Justice Sonia Sotomayor: You have now told me that the vast majority of States, 47 I think is the number you gave -- put this into post conviction, give counsel at post-conviction review.

Isn't it an empty promise if what you are giving is incompetent counsel?

I mean, Strickland is a very high standard.

Mr. Wall: --Justice Sotomayor, a number of States have found under their own constitution or statutes a right to effective assistance of counsel.

But it's a very different matter to say that when States go beyond what the Constitution requires in providing counsel, that counsel's performance thereby gives rise to a due process claim.

And again, the courts rejected that in at least three cases, and I think saying that it's cause to excuse a procedural default here without saying that there is some underlying right to counsel would require a ruling in those other cases.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Bartels, you have two minutes remaining.

REBUTTAL ARGUMENT BY ROBERT D. BARTELS ON BEHALF OF THE PETITIONER

Mr. Bartels: Mr. Chief Justice, let me straighten out one thing -- subtly in the record about the facts.

This is not in the record, and I am doing this for my friend's benefit.

Harriet Levitt was initially appointed to represent Mr. Martinez on appeal.

She then moved to have herself appointed for purposes of a post-conviction review, and it was at a later date, not too much later, that she filed the notice.

So at the time the notice was filed, she was officially appointed counsel for purposes of post-conviction proceedings, and the Arizona Court of Appeals stayed their proceedings, which were ongoing.

There was a notice of appeal to allow it to continue.

The other point that I wanted to get to was, the questions about other States where this -- these claims are handled on direct appeal illustrate a couple of things about our argument: One is, it would be -- seem very peculiar to say you have a right to appointed and effective counsel in Wisconsin or Utah on these issues, but not in Arizona, where the label -- that difference is purely label.

All these claims, almost all of them, require additional evidence, and that fact makes counsel even more important.

Respondents want to say you have a right to counsel on review for almost all claims, but not the one where you need it the most.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Kennedy has the opinion in two cases this morning.

Justice Anthony Kennedy: The first case is Martinez versus Ryan, Number 10-1001.

After a criminal conviction in a state court, a prisoner may want to raise constitutional claims in a federal court.

This happens with some frequency, and that occurred here.

Petitioner, Luis Martinez, sought to raise, in a habeas proceeding in federal court, the claim that his counsel was, in effective at the state trial, but federal claims, as a general rule, cannot be raised in a federal habeas court proceeding unless the prisoner has first raised them in state courts.

And if the prisoner has not done so and has not followed settled -- settled state procedural rules, then, and this again is a general principle, he is barred from raising them in the federal proceeding and when -- and when this happens, the law says that he has procedurally defaulted his claim.

In some circumstances, a default can be excused.

One instance of an excuse is when the prisoner's counsel was ineffective on direct appeal where the federal claim first should have been raised.

Now, here, the petitioner was convicted in the Arizona state courts.

After that conviction, he did not raise his claim of ineffective assistance at the trial at the first opportunity to do so because he says his first counsel in the state proceedings after trial was also ineffective.

Ordinarily, that would be an excuse for procedural default, but here that procedural default occurred in a state collateral proceeding, not on state direct review.

And since there is, in general, no constitutional right to counsel in collateral proceedings, Arizona now says that there was a procedural default which cannot be excused.

In the federal habeas proceedings, the Federal District Court and the Court of Appeals agreed with Arizona.

The federal courts did not hear the petitioner's claim on the merits and the case comes to us on appeal on -- on certiorari for the United States Court of Appeals for the Ninth Circuit.

In the case now before the Court, the petitioner says that well, this might have been a correct ruling under other States' systems, here, the Arizona rules did not allow him to raise a claim of ineffective assistance at trial until the state collateral proceedings.

That was the first time he could make the claim whereas here, the collateral proceeding is the first designated proceeding for a prisoner to raise a claim of -- of ineffective assistance at trial.

The collateral proceeding is in many ways, the equivalent of a prisoner's direct appeal on the effective assistance issue.

And so, petitioner says, "If his counsel was ineffective during the first state proceeding when the federal claim could have been raised, the procedural default is excused."

For the reasons set forth at some length in today's opinion, the Court agrees with the petitioner.

The Court finds that the procedural default is excused under equitable principles that inform the procedural default rule.

The Court's holding need not and does not rest on constitutional grounds.

The judgment of the Court of Appeals is reversed.

The case is remanded for further proceedings consistent with the Court's opinion.

Justice Scalia has filed a dissenting opinion, in which Justice Thomas has joined.