Justices Question Right to Appellate Counsel

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By Jessica DaSilva

The Sixth Amendment guarantees a right to effective criminal representation at trial, but what rights apply in the appellate context was the focus of circular questioning at April 24 U.S. Supreme Court oral arguments ( Davila v. Davis, U.S., No. 16-6219, argued 4/24/17 ).

Defendant Erick Daniel Davila argued that his appellate counsel was deficient for failing to argue what Davila believed was an improper jury instruction.

If the court finds in his favor, Davila would have grounds to challenge his final and fully appealed state conviction.

External Error

The Sixth Amendment guarantees the right to effective representation during a criminal trial, but is silent on post-conviction proceedings.

Technically speaking, a state is not even required to offer an appellate court system, Justice Elena Kagan pointed out. However, once a state chooses to provide an appellate process, the Sixth Amendment creates a right to appointed counsel, she said.

Once finalized, state convictions can’t usually be tested in federal court based on an alleged trial error. However, that trial error could be the basis of habeas relief if it based on an “external” error, such as actual innocence or ineffective assistance of trial counsel.

Davila asked the high court to extend the exception to direct appeals claims. If successful, it would allow him to make his jury instruction argument in a new state appeal based on the external error that his direct appeals attorney was ineffective in failing to raise the argument on appeal.

Catch-22 Issue

Justice Stephen Breyer called it a “Catch-22” issue. How can an appellate lawyer effectively raise an ineffective assistance of trial counsel claim when that appellate lawyer was also ineffective, he asked. Breyer seemed to suggest that expanding the exception would be superfluous, since the appellate mistake would always be connected to the trial mistake.

“It’s very unlikely that you’re going to have ineffective assistance of appellate counsel where there wasn’t also the ineffective assistance of trial counsel,” Breyer said. For an appellate attorney to have made a mistake, it would have required some failure of trial counsel to land the case on that appellate lawyer’s desk in the first place, he explained.

But it is possible for the mistakes to exist separately, Seth Kretzer, Houston, Texas, appointed by the court to represent Davila, said. An appellate attorney could decline to raise an issue on appeal for strategy reasons—which is permitted under existing precedent.

Texas Solicitor General Scott A. Keller focused a larger portion of his argument on the “infinitesimally” small number of cases that could possibly win review in a federal habeas appeal under the expanded exemption. It would require an error to occur not only during the trial, but in the direct appeal and the state habeas appeal, he said.

Kagan took issue with that argument, however.

“It’s like, OK, it will be rare,” Kagan said. “But the alternative is that those rare, good claims, where there really has been a defective appellate process and a violation of the constitutional right to a fair appellate process has been violated, and there’s no way to correct for that in the same way that there was no way to correct for the ineffective trial counsel that we talked about” in the original exemption cases.

Keller’s response connected it back to Breyer’s original comment: There would be no need for an additional exemption because the appellate error could never be sufficiently severed from the trial error.

As long as the trial error has been addressed by the trial court, no need arises for additional remedy for an alleged appellate error in not arguing the trial error more vigorously, he said.

Murder at a Birthday Party

Davila was convicted for a 2009 gang-related shooting at a children’s birthday party which killed Annette Stevenson and her granddaughter Queshawn. Davila’s argued at trial that he did not intend to kill either victim, but a man sitting on the porch—the victims’ son and father, respectively.

During deliberations, the jury asked the judge if it could find Davila guilty based on his intent to kill the man on the porch, which transferred to his actual victims. Over defense counsel’s objection, the judge gave a “transferred intent” instruction.

After the close of his state habeas appeal, Davila argued in a federal habeas suit that his direct-appeals attorney was ineffective for failing to challenge what he alleges was an improper jury instruction.

To contact the reporters on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editors responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full transcript at http://src.bna.com/oc4.

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