Right to Counsel Doesn’t Extend to State Appeals

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By Jessica DaSilva

More cases on the right to counsel in the state appellate process are likely to come up before the U.S. Supreme Court, despite a June 26 ruling that declined to expand the constitutional right to counsel, according to two professors who study the federal habeas system ( Davila v. Davis , 2017 BL 218967, U.S., No. 16-6219, 6/26/17 ).

The U.S. Constitution guarantees criminal defendants the right to effective legal counsel at trial, but that doesn’t extend to representation for appeals, the Supreme Court said June 26 in a 5-4 ruling. The Sixth Amendment guarantees the right to effective representation at trial, but is silent on state post-conviction proceedings like sentencing or appeals.

The court decided not to expand an exception created under a previous ruling in Martinez v. Ryan that allowed defendants to make ineffective assistance of trial counsel claims in a federal habeas ruling when their appellate attorneys failed to raise that claim in a direct appeal.

Erick Daniel Davila argued in his bid to get a federal court to look at his 2009 state murder conviction that his appeals lawyer was ineffective for failing to challenge what he said was an improper jury instruction at his trial. But that claim in federal court was barred by an automatic procedural rule that doesn’t allow petitioners to raise substantive claims in a federal habeas appeal that hadn’t been previously raised in a state habeas appeal.

The Supreme Court upheld the ruling from the U.S. Court of Appeals for the Fifth Circuit in rejecting Davila’s ineffective counsel argument underpinning his habeas claim.

“Attorney error that does not violate the Constitution” is “attributed to the prisoner ‘under well-settled principles of agency law,’” Justice Clarence Thomas wrote for the majority. “It follows, then, that in proceedings for which the Constitution does not guarantee the assistance of counsel at all, attorney error cannot provide cause to excuse a default.”

But this will likely mean the court will see more challenges in this area of law as defense attorneys and defendants make similar arguments for different types of ineffective assistance claims going forward, professors Eric M. Freedman and Brandon Garrett told Bloomberg BNA.

Justice Stephen G. Breyer wrote a dissenting opinion in which Justices Sonia Sotomayor, Ruth Bader Ginsberg, and Elena Kagan joined.

‘Domino Effect’

Davila’s substantive claim grew out of what he believed was an incorrect jury instruction. Davila accidentally shot and killed the mother and daughter of his attempted target, a rival gang member.

The trial court gave an incorrect instruction on transferred intent—which can allow for conviction based on the intention to harm an unintended target, based on the intent carried for the intended target. Davila’s trial attorney did not object to the incorrect jury instruction.

His direct appeal attorney and state habeas attorney both failed to raise the issue in the appellate process. That shut down the jury instruction claim on federal habeas review.

The most telling line in the majority opinion is that expanding the Martinez exception would “produce a domino effect” that could unravel the procedural default process, said Freedman, from the Maurice A. Deane School of Law at Hofstra University, Hempstead, N.Y.

“As was clear in the oral arguments on Martinez originally, the justices are worried about an infinite regress of allowing the requirement of exhaustion of state remedies to be undermined if you can attack the state post-conviction procedure,” Freedman said.

It shows the court’s key concern is overburdening the federal court system, he said.

“No one seems to doubt that Davila was badly victimized by the legal system,” Freedman said of the justices. “But sitting as they do at the top of the judicial system, they’re worried about system-wide effects.”

Creating the Problem?

However, the majority might be creating a system that causes the problems it is seeking to reduce, said Garrett, a professor at University of Virginia School of Law, Charlottesville, Va.

The rules on exhausting state remedies have been created by the Supreme Court, he said. The more rules there are to navigate, the harder it is for petitioners and attorneys to comply, he said.

“It takes a brain surgeon to navigate these provisions on habeas corpus,” Garrett said.

The result is that good criminal defense attorneys at the appellate level are encouraged to raise every potential claim they see in a record, rather than focusing on a shorter list of more viable claims, Garrett said. That means judges spend more time reviewing the viability of claims instead of weighing issues about constitutional violations, he said.

That discrepancy can be seen in Davila’s case, Garrett added.

“There’s nothing here as to whether this is a constitutional claim,” Garrett said. “Who did this person actually intend to murder? Can he be sentenced to death for shooting someone intentionally or accidentally, based on transferred intent? We want a court to answer those questions.”

Foreclosing procedurally defaulted claims will only worsen systems often featuring “endemically underfunded” public defenders, Garrett said.

For example, public defenders often represent the defendant at trial and in the direct appeal, he said.

“That’s not the best person to identify their own trial errors,” Garrett said.

Defendants are typically representing themselves in state and federal habeas claims, which means it might be the first if not only time they have a chance to raise an ineffective assistance of counsel claim against an appellate attorney, he said.

The Deciding Voter

Finding the right angle on arguments on the post-conviction right to counsel makes all the difference in an area of law that has been entirely created by the Supreme Court, rather than by written laws, Garrett and Freedman said. And, really, it boils down to Justice Anthony Kennedy, who wrote the decision creating the Martinez exception, but who voted against expanding it in Davila, they said.

That creates some wiggle room in the law, increasing the likelihood that more claims about the right to counsel in the post-conviction process will arise.

“The state in this case managed to win the empirical fight in this claim on this day,” Freedman said. “Presumably, that leaves open the opportunity to win the empirical fight in another claim on another day.”

That means future defense attorneys will need to look back at how the arguments in past decisions have been framed for the court to strike the right chord with the justices, Freedman said.

At the time of Martinez, arguments on the right to counsel in the post-conviction phase had been made and lost, he said. Even at oral arguments, Freedman said the court had been “incredibly hostile” to the defense’s position.

And then Kennedy penned the equitable exception in the Martinez decision, he added.

“I certainly expect the same vigorous and creative counsel who got the Martinez decision in the first place will” carve out more definite parameters in the right to appellate counsel, Freedman said. “Taking the lesson of that history, it would seem the area hasn’t been shut down.”

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

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

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