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The New Role of Federal Habeas Courts in Guaranteeing the Right to Effective Assistance of Counsel

Appellate Practice

The conventional wisdom is that federal habeas review no longer allows federal courts to play much of a role in supervising state practice. After the apex of federalization during the Warren Court era, the Supreme Court has tended to narrow the scope of habeas review through doctrines such as procedural default and anti-retroactivity. Subsequently, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposed strict limitations on habeas relief, including an extremely deferential standard of review of legal and factual conclusions. The Supreme Court has mostly construed AEDPA against habeas petitioners. The Great Writ, once considered “a kind of federal appeal as of right,”1 i s now subject to so many restrictions that one might not notice if it were abolished.2

Recent developments have created an exception for claims of ineffective assistance of counsel (IAC) not raised until the federal habeas petition. To prevail on an IAC claim, petitioners must show that their attorney’s performance was deficient relative to prevailing standards of professional care, and that the deficient performance resulted in prejudice in the form of “a reasonable probability of a different result.”3 Although federal courts defer to trial counsel by presuming that any alleged deficiency was actually the product of a reasoned strategic choice,4 IAC claims can rely on substantive legal bases that should have been raised separately, such as an unpreserved evidentiary error or a Brady claim not raised on appeal.5 Indeed, because the Sixth Amendment can be violated when counsel fails to raise an issue that would only be meritorious under state law, federal courts can grant relief on IAC claims despite lacking jurisdiction over the underlying state law claim.6 In determining whether prejudice exists, individual errors may be examined together to determine whether a different result would have obtained absent counsel’s errors.7 These features of the constitutional guarantee of effective assistance of counsel render IAC claims a powerful and flexible tool for reaching error.

Now, instead of forfeiting claims not raised first in state courts, habeas petitioners will often have a chance to bring new meritorious IAC claims in federal court. Instead of affording deference to state court decisions, federal courts can adjudicate these claims de novo and can likely allow petitioners to develop the factual basis of their claims. After a brief review of the relevant restrictions on federal habeas, I will explain how new IAC claims sidestep some of them and potentially render IAC claims a powerful, flexible tool for federal habeas petitioners and practitioners.

Procedural Barriers to Habeas Relief
Federal law imposes substantial constraints on granting habeas relief. Some are procedural bars with equivalents in state court proceedings.8 The most stringent is the bar on second or successive habeas petitions in 28 U.S.C. §2244(a-b). After the first habeas petition is filed, federal courts lack jurisdiction over subsequent petitions unless a claim satisfies one of two tests: Either it relies on a new rule of law that the Supreme Court has applied retroactively; or, the claim is based on newly discovered facts, not discoverable through the exercise of due diligence, which establish the petitioner’s innocence such that no reasonable factfinder could have found the petitioner guilty. As discussed in the following section on standards of review, federal courts apply a strict anti-retroactivity standard that will bar most, if not all, claims based on new rules. As petitioners generally cannot make a compelling showing of innocence, one should always proceed as though the first federal habeas petition will be the last.

Still strictly applied, but capable of being excused on equitable grounds, is the one-year statute of limitations set forth in 28 U.S.C. §2244(d). Although the statute of limitations for most petitioners will begin to run on the date the conviction became final on direct review, the statute allows for belated commencement when a state-created impediment prevents filing, when a new rule of law is declared retroactive to cases on collateral review, or when the factual basis of the claim could not have been discovered earlier by a petitioner exercising due diligence. The statute of limitations is tolled while a properly filed state postconviction motion is pending, but the state motion must be filed before the one-year period elapses, two-year state limitations period notwithstanding. In extraordinary circumstances, equitable tolling is available, but not for “garden variety”9 examples of attorney error — even in death penalty cases.10

Successiveness and timeliness continue to present formidable procedural obstacles that petitioners and practitioners should not expect to circumvent.11 It is the exhaustion requirement that no longer applies with as much force, and gives petitioners an opportunity to bring claims that should have been brought earlier. Codified at 28 U.S.C. §2254(b-c), exhaustion requires the petitioner to present his claim in state court unless there is no state corrective process or those circumstances are “ineffective to protect the rights” of the petitioner. Claims are not exhausted if the petitioner could bring the claim through some state procedure. “[T]o properly exhaust a claim, the petitioner must fairly present every issue raised in his federal petition to the state’s highest court, either on direct appeal or on collateral review.”12 The petitioner must present the federal basis of his claim; it is not enough to present the factual basis of the claim while relying solely on state law.13

Petitioners with unexhausted claims cannot just bring them in state court regardless of whether state rules permit. The “teeth” of the exhaustion requirement is the doctrine of procedural default,14 whereby federal courts may not review claims if an “adequate and independent” state procedural rule would preclude adjudication on the merits in state court.15 Rather than requiring the petitioner to undertake a futile attempt to obtain a merits ruling, the federal court will simply find that the claims are procedurally defaulted. Claims that were actually raised, but rejected on adequate and independent state procedural grounds, are also procedurally defaulted. Examples of adequate and independent procedural rules in Florida include the rule against successive Fla. R. Crim. P . 3.850 motions, the two-year limitations period, and the requirement that Brady claims be raised on direct review.16

The exhaustion requirement has long been subject to exceptions for miscarriages of justice (most commonly a creditable showing of innocence) and for “cause and prejudice.”17 “Prejudice” occurs when the claim is meritorious. The “cause” must be an explanation for the default that is external to the petitioner. Because the petitioner enjoys a guarantee of effective assistance at trial and on appeal, courts agreed that ineffectiveness during these proceedings justified relaxing the rules on procedural default. So, if a substantive claim (such as prosecutorial misconduct) was unexhausted because trial counsel had not objected or because appellate counsel had not raised it, the claim could still be available in federal court if the claim was meritorious and counsel’s failure to raise it was constitutionally ineffective. There was a catch, though: The ineffectiveness that established “cause” also had to be exhausted in state court. If the petitioner had not raised the underlying claim during state postconviction proceedings, procedural default still applied.18 Unfortunately, federal courts did not consider ineffectiveness of postconviction counsel to be an excuse for raising the trial or appellate IAC claims. Reasoning that postconviction counsel was a mere agent of the petitioner because no right to counsel existed, courts applied the procedural default rule if the “excuse” IAC claim was not raised during postconviction review (PCR).

A consequence of this approach was that all claims of ineffective assistance of counsel were barred unless they were raised in state court.

The rules governing exhaustion changed in 2012 when the Supreme Court decided Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012). Overturning settled precedent in every circuit, the Supreme Court reasoned that defendants deserve the assistance of counsel during postconviction proceedings, at least with respect to claims that could not have been raised while the constitutional right to counsel existed at trial or on appeal.19 Although the Supreme Court did not create any independent right to counsel on PCR,20 the Court announced that it would no longer apply the procedural default rule to these “first-tier collateral claims” (generally ineffectiveness claims) if the petitioner did not have the assistance of counsel during state postconviction proceedings, or if postconviction counsel’s failure to raise the federal claim constituted ineffective assistance of counsel.

Now federal habeas petitioners and practitioners are no longer bound by mistakes of omission during state PCR proceedings.21 This creates additional opportunities to raise constitutional violations not preserved at trial or on appeal due to counsel’s ineffectiveness and also allows new claims of ineffective assistance to be raised for the first time on federal habeas review. Martinez means that federal courts will be hearing more IAC claims on the merits and, for the first time, will be evaluating the performance of state PCR counsel. This will bring federal scrutiny to attorney performance across a wider range of claims. As explained in the following section, the scrutiny will be more rigorous than in most other habeas claims.

Standard of Review Barriers to Habeas Relief
Aside from the procedural requirements, federal courts apply extremely deferential standards of review to claims that were adjudicated on the merits in state court.22 An adverse decision in state court significantly limits relief in IAC claims because Strickland v. Washington, 466 U.S. 668 (1984), is a very general rule that permits disagreement in individual cases, making it difficult to say that a given application is clearly wrong.23 There is no state decision to which federal courts can review when a petitioner invokes Martinez to raise a new claim of IAC. This is a marked difference from pre-Martinez days, when any reviewable claim of IAC would be subject to a “doubly deferential” review of questions of law and fact, based on Strickland ’s own command to defer to counsel’s choice of strategy and the requirement that relief be granted only when a state court decision is unreasonable, not merely incorrect.24

For questions of law, federal habeas courts are bound by 28 U.S.C. §2254(d), which limits relief to a very narrow class of decisions: Those that are unreasonable based on federal law, which is clearly established25 by the U.S. Supreme Court.26 State courts do not need to consider how the lower circuit courts have interpreted the law. Relief is available only when the state court applies the incorrect rule of law, reaches the opposite conclusion as the Supreme Court on an undistinguishable set of facts,27 or unreasonably fails to extend a rule to cover a new set of facts.28 Relief is not appropriate unless “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with the Court’s precedents.”29

When Sixth Amendment ineffectiveness turns on a question of state law (for example, the relatively generous standard for withdrawing guilty pleas based on misadvice), federal courts cannot second-guess state courts, which are “the final arbiters of state law.”30

Conclusions of fact receive similar deference to questions of law; courts may only grant relief on questions of fact when the state court’s decision is unreasonable based on the record before the state court.31 Alternatively,32 the petitioner may rebut the presumption of correctness by clear and convincing evidence.33 However, most petitioners are not able to introduce new evidence in federal proceedings unless their claims demonstrate actual innocence and additionally rely on either a new, retroactive rule of constitutional law or facts that could not have been discovered previously despite the exercise of due diligence.34 Those who “failed to develop the factual basis” for reasons not attributable to their own fault must only satisfy the relatively lenient pre-AEDPA standard for hearing.35

Additionally, even conclusions of law must be reviewed in light of the record that was before the state judge, rather than evidence adduced during federal habeas proceedings.36 One should note that these restrictions apply only to claims for relief, not to issues of federal procedure, such as whether Martinez applies.37

Because there has been no state-court adjudication on the merits, Martinez -excused IAC claims bypass these restrictions on review. Federal courts may conduct a de novo review of the substance of the claim and hold an evidentiary hearing if the petitioner alleges a violation of constitutional law. This imposes on federal courts an obligation to decide independently whether counsel’s performance was adequate.

While technically distinct, the issue of retroactivity is similar enough to a standard of review to warrant a brief mention here.38 Retroactivity of new rules in federal courts is governed by the Teague doctrine, while Florida courts use the more favorable pre- Teague analysis.39 Retroactivity is a complicated doctrine in federal courts, laden with value-judgments about the proper role of federal habeas in reviewing convictions by states. It is enough to observe that the Supreme Court has not applied any of the most important recent cases retroactively, and has remarked that perhaps only the right to counsel announced in Gideon itself would be a new rule of sufficient importance to apply retroactively.40 Claims of ineffective assistance of counsel generally bypass the anti-retroactivity review because Strickland establishes such a generalized test that specific applications thereof are not “new rules.”41

Strickland claims present mixed questions of law and fact.42 New, Martinez -excused IAC claims bypass §2254(d) completely because there is no state court adjudication to which federal courts can defer.43 Although the 11th Circuit has yet to issue a ruling, it appears likely that under Martinez, ineffective failure to develop the factual basis of a claim is no longer “failure” such that §2254(e)(2)’s restriction on evidentiary hearings applies.44 Therefore, Martinez -excused claims avoid the significant restrictions on federal review of questions of law and fact, and likely allow an opportunity to make a record that allows federal courts to grant relief.

Conclusion: Consequences of Expanded Review of IAC Claims
There are four basic scenarios to consider in determining how Martinez affects individual defendants. In most cases, when the defendant never hires a lawyer after the conclusion of direct appeal, the effect is to give the defendant a second chance to identify and bring all of his or her claims. The defendant who proceeds without any postconviction counsel presumably had no understanding of the law before becoming ensnared in the criminal justice system; such defendants now have an additional period of time to identify and present any meritorious claims on their own or with whatever help they can obtain while incarcerated. I expect these cases to account for the vast majority of the applications of Martinez.

The next most common application of Martinez should be to pro se habeas petitioners who did have some form of state PCR counsel. Defendants with some resources are likely to (and would be well-advised to) spend them at the state PCR stage, where the substantive rule may be more favorable (for example, because state law requires the prosecution to rule out any hypothesis consistent with innocence when the only evidence is circumstantial) or the procedural requirements less stringent (for example, because Florida’s anti-retroactivity doctrine is arguably more favorable to defendants). As with trial and appellate counsel, there is no reason to believe that postconviction attorneys as a group are failing to deliver adequate representation. However, postconviction counsel is not infallible; inevitably, a pro se defendant will discover a meritorious claim that counsel missed. Everyone should be happy that federal courts can now grant relief on these claims.

Some defendants lack the resources to hire state PCR counsel, but experience a change of fortune before the federal habeas limitation expires. Others (unwisely, in my opinion) feel that they could litigate their own claims, but change their mind after state postconviction relief is denied and they realize that federal habeas review is their last chance. Under Martinez, the federal habeas practitioner is now in a position to actually render help, rather than being bound by the pro se litigant’s choice of claims. Martinez saves these defendants from themselves.

For defendants represented on state PCR and federal habeas, Martinez grants habeas counsel freedom to raise new claims, but only by attacking the performance of state PCR counsel. What of the defendant who retains the same counsel for state and federal postconviction review? Post- Martinez, there exists the possibility of a conflict of interest due to ineffective assistance at the state level. If counsel discovers a new, arguably meritorious claim that was not raised in state court, the most ethical resolution would be to refer the case to another attorney who can raise the claim that state PCR counsel rendered ineffective assistance; practitioners should at least consider engaging another attorney to review the case to determine whether Martinez -excused claims may exist, especially if they omitted a potential claim they felt was relatively weak.45

It remains to be seen whether Martinez will cause any appreciable increase in federal habeas relief. Although there is no particular reason to believe that federal courts routinely failed to adjudicate meritorious IAC claims before Martinez, they are certainly more able to grant relief on a Martinez -excused claim than claims that require deference to a state court decision. Regardless of whether Martinez changes the rate of relief, we should expect an increase in the number of IAC claims decided on the merits by federal courts applying a de novo standard of review.

Moreover, state postconviction practitioners should be aware that federal courts are now able to declare that their performance was deficient. Trial attorneys will no doubt welcome this development; postconviction practitioners should also sleep a little easier knowing that our mistakes will not necessarily preclude federal relief on meritorious claims we didn’t spot. Hopefully, if “ Martinez…make[s] little difference in [] the enforcement of the right to…effective assistance of counsel,” it is because most defendants are adequately represented — or at least not prejudiced by counsel’s mistakes.46 However, another reason could be that Martinez fails to solve the basic problems: Limited resources at trial and on appeal, and the lack of appointed counsel on postconviction review.47 Ultimately, defendants seeking postconviction review are usually on their own, and many need professional help in addition to a second chance to identify constitutional claims.

1 David Gottlieb & Randall Coyne, Habeas Corpus Practice in State and Federal Courts, 31 N.M. L. Rev. 201, 201 (Winter 2001).

2 A recent study found that only one in 284 noncapital habeas cases result in some form of relief, down from around 1 percent before AEDPA. King et al., Executive Summary: Habeas Litigation in U.S. District Courts 9 (2007), available at

3 Strickland v. Washington, 466 U.S. 668 (1984); see also Hill v. Lockhart, 474 U.S. 52 (1985); Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376 (2012).

4 Strickland, 466 U.S. at 689; see also id. at 690-91.

5 See, e.g., Gattis v. Snyder, 278 F.3d 222, 237 n.6 (3d Cir. 2002).

6 See Swarthout v. Cooke, __ U.S. __, 131 S. Ct. 859, 861 (2011).

7 Morris v. Sec’y, Dept. of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012).

8 See Fla. R. Crim. P. 3.850(b, h).

9 Holland v. Florida, 560 U.S. 631, 651-52 (2010).

10 See Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198, 1212-1213 (11th Cir. 2014).

11 See Lambrix v. Sec’y, No. 13-11917, 2014 WL 2884606, 2014 U.S. App. LEXIS 12052 at *3-4 (11th Cir. 2014).

12 Mason v. Allen, 605 F.3d 114, 119 (11th Cir. 2010).

13 Picard v. Connor, 404 U.S. 270, 277 (1971); see also Baldwin v. Reese, 541 U.S. 27 (2004); Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam).

14 Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

15 A rule is “adequate and independent” if it is “firmly established and regularly followed,” Siebert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006), and not applied in an “arbitrary or unprecedented fashion,” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001), or in a manifestly unfair manner. Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995).

16 Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327 (11th Cir. 2009) ( Brady claims); Whiddon v. Dugger, 894 F.2d 1266 (11th Cir. 1990) (two-year limitations period); Elrod v. Sec’y, Dep’t of Corr., No. 8:11-cv-1777, 2014 WL 3687243, 2014 U.S. Dist. LEXIS 101001 at *19 n.6 (M.D. Fla. 2014). See Brown v. McDonough, 200 F. Appx. 885 (11th Cir. 2006) (for a counterexample).

17 See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

18 See Hill v. Jones, 821 F.3d 1015, 1029-31 (11th Cir. 1996).

19 T he federal circuits have split on whether Martinez extends to claims of ineffective assistance of appellate counsel (IAAC). Compare Ha Van Nguyen v. Curry, 736 F.3d 1287, 1289 (9th Cir. 2013) (applying Martinez to IAAC claims) with Hodges v. Colson, 727 F.3d 517, 531 (9th Cir. 2013) ( Martinez does not apply to IAAC claims); Bands v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012) (same). The 11th Circuit does not appear to have ruled on the issue, although dicta in a single case suggests a limited reading of Martinez. See Arthur v. Thomas, 739 F.3d 611, 612 (11th Cir. 2014) (explaining that “ Martinez involves only the procedural default doctrine as to an ineffective-trial-counsel claim” where issue presented was timeliness, not exhaustion).

20 See Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d 940 (11th Cir. 2014); Banks v. State, 150 So. 3d 797 (Fla. 2014); see also 28 U.S.C. §2254(i).

21 If a claim raised at the initial level ( i.e. , in a Fla. R. Crim. P. 3.850 petition) is not raised in a subsequent appeal, Martinez does not apply and the claim is likely procedurally defaulted. Martinez, 132 S. Ct. at 1320 (explaining that the exception “does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings”).

22 Generally, unless a state court explicitly relies on a procedural rule to avoid reaching the merits of a claim, federal courts must presume that the claim was considered on the merits and rejected. Childers v. Floyd, 642 F.3d 953, 967-69 (11th Cir. 2011) (explaining that summary rejection of a claim, even without explanation, qualifies as a merits ruling); see also Early v. Packer, 537 U.S. 3, 8 (2002).

23 Knowles v. Mizayance, 556 U.S. 111, 123 (2009).

24 Yarborough v. Gentry, 540 U.S. 1, 6 (2003).

25 Williams v. Taylor, 529 U.S. 362, 412, (2000).

26 Thaler v. Haynes, 559 U.S. 43 (2010).

27 The “contrary to” prong of §2254(d) is satisfied “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13.

28 See generally Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1291 (11th Cir. 2012).

29 Anderson v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 881 (11th Cir. 2014).

30 Herring v. Sec’y, Dept. of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005).

31 Monfiston v. Sec’y, Dept. of Corr., No. 13-12283, 2014 WL 998484, 2014 U.S. App. LEXIS 4932, at *10 (11th Cir. 2014).

32 The 11th Circuit has held that the presumption of correctness disappears if the finding of fact is unreasonable under 28 U.S.C. §2254(d)(2). Adkins v. Warden, Holman Corr. Fac., 710 F.3d 1241, 1249 (11th Cir.), cert. den., 134 S. Ct. 268 (Oct. 7, 2013)

33 See Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005) (describing the court’s review as “even more deferential than under a clearly erroneous standard of review”).

34 28 U.S.C. §2254(E)(2).

35 Williams v. Taylor, 529 U.S. 420, 432 (2000); see also Jefferson v. Upton, 560 U.S. 284, 289-90 (2010).

36 Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

37 Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2013) (en banc).

38 Williams v. Taylor, 529 U.S. 362 (2000).

39 State v. Johnson, 122 So. 3d 856, 861 (Fla. 2013)

40 Whorton v. Bockting, 549 U.S. 406, 418-21 (2007).

41 But see Chaidez v. State, 133 S. Ct. 1103, 1107-08 (2013) (holding that expansion of counsel’s duties under the Sixth Amendment to include a reasonable level of advice about certain collateral consequences, which overturned the law of most jurisdictions, was a non-retroactive new rule).

42 See, e.g., Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003).

43 Pinholster, 131 S. Ct. at 1401.

44 See Gallow v. Cooper, 133 S. Ct. 2730 (2013); Newbury v. Stephens, No. 10-70028, 2014 WL 2958635 at *50-57, *61-68 (5th Cir. 2014); Lopez v. Ryan, 678 F.3d 1131, 1137 (9th Cir. 2012).

45 See Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013) (holding that capital habeas petitioners, entitled to appointment of counsel, must also be appointed independent counsel to search for Martinez -based claims if the federal habeas attorney also represented the petitioner in state postconviction proceedings).

46 Nancy J. King, Enforcing Effective Assistance after Martinez, 122 Yale L. J. 2428, 2431 (2013).

47 See Pub. Defender v. State, 115 So. 3d 261, 261 (Fla. 2013) (authorizing public defender to withdraw from cases due to unmanageable caseloads that violated the right to effective counsel).

Gray R. Proctor practices civil and criminal appellate law in Orlando at his own office and as of counsel with Fox and Loquasto, P.A. He serves on the advisory board of the BNA Bloomberg Criminal Law Reporter and as an assistant editor for the Appellate Practice Committee of The Florida Bar.

This column is submitted on behalf of the Appellate Practice Section, Ceci Culpepper Berman, chair, and Brandon Christian, editor.

Appellate Practice