U.S. Supreme Court to rule: Do defendants have post-conviction right to effective counsel?

By Kimberly Atkins

The Daily Record Newswire

On Tuesday, the justices of the U.S. Supreme Court debated the limits of a defendant's constitutional right to effective assistance of counsel in post-conviction proceedings.

Martinez v. Ryan involves the appeal by Luis Mariano Martinez of his conviction for sexual conduct with a minor. He received a state-appointed appellate lawyer, who filed a notice of post-conviction relief but then, without telling Martinez, requested 45 days for the defendant to file a pro se petition.

Martinez later obtained another appellate lawyer, who filed a new petition for post-conviction relief alleging ineffective assistance on the part of his trial lawyer. But the trial court dismissed the petition, ruling that the failure to raise the claim in the first post-conviction petition constituted a default under Arizona state law.

A U.S. District Court denied Martinez's subsequent petition for habeas corpus, concluding that the Arizona procedural rules were an "adequate and independent" basis for barring federal review.

The 9th Circuit affirmed, finding that the state rules did not interfere with a federal constitutional right.

Martinez appealed, asking the Supreme Court to consider whether he had a right to effective counsel in his first post-conviction petition.

The Court granted certiorari.

'Far-reaching proposition'?

At oral arguments, Robert D. Bartels, a trial advocacy professor at the Sandra Day O'Connor College of Law in Tempe, Ariz., pointed out that while all other claims of post-conviction relief go before the Arizona Court of Appeals on direct appeal - where there is a right to counsel - ineffective assistance claims must be brought before the trial court, where no such right to counsel exists.

"Our position is that [that] distinction cannot stand," Bartels said.

Justice Samuel Alito expressed concerns about the scope of Martinez's request.

"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?" Alito asked.

"Yes," in proceedings authorized by state law, Bartels replied.

"That's a very far-reaching proposition that [would] extend well beyond claims of ineffective assistance of counsel at trial, wouldn't it?" Alito asked.

"Yes," Bartels said.

Bartels said the right to state-appointed counsel would not extend beyond state claims, but Alito still pressed to find the limits of the relief the defendant sought.

"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?" Alito asked. "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?"

"The state does not have any duty to pay the lawyer in those circumstances," Bartels replied.

"It's not a question of pay," interjected Justice Ruth Bader Ginsburg. "[What if] 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'?"

"I think the appointment could be limited," Bartels said.

Cost concerns

Kent E. Cattani, chief counsel of criminal appeals at the Arizona Attorney General's Office, argued that Martinez's position would represent "a significant change to this Court's jurisprudence" and would impose excessive costs on the state.

Justice Elena Kagan pointed out that Arizona allows appointed counsel in most post-conviction proceedings already.

"And I'm just wondering where those costs come from if you appoint counsel already," Kagan said "I know some other states are in a different situation, but as to you, where do the costs come from?"

If the Court adopted Martinez's position, it "would require a second post-conviction proceeding to eliminate the claims of ineffective assistance of post-conviction counsel," whereas now such claims are summarily adjudicated, Cattani replied.

Jeffrey B. Wall, assistant to the U.S. solicitor general arguing as amicus curiae, stressed that most states and the federal government allow for counsel in post-conviction proceedings only at the discretion of the trial court.

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

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

Wall replied that there are other avenues of relief that provide for the right to counsel.

"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," Wall said.

A ruling from the Court is expected later this term.

Published: Mon, Oct 10, 2011

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