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Ineffective Counsel Case Gets High Court Reboot

(CN) - Justice Antonin Scalia rebuked his colleagues Tuesday for "a monstrosity" and "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 majority opinion gives an Arizona inmate clearance to belatedly challenge his defense attorneys as he appeals his conviction for sexual conduct with a child.

Luis Mariano Martinez is serving two consecutive terms of 35 to life in Arizona for two counts of sexual conduct with a person under the age of 15. Martinez's 11-year-old stepdaughter claimed she was abused, but later recanted. The state also admitted the girl's nightgown into evidence, pointing out that it had traces of Martinez's DNA.

Arizona appointed a new attorney to represent Martinez in his direct appeal, but the lawyer never claimed that Martinez's trial counsel was ineffective. In Arizona, inmates must bring such claims separately at state collateral proceedings. Martinez said the court-appointed appellate counsel failed to consult with him or inform him about what he needed to do to raise claims he believed his counsel had overlooked.

Armed with yet another attorney for his second notice of postconviction relief in the Arizona trial court, Martinez claimed that his trial lawyer had been ineffective for not challenging the prosecution's evidence.

The state rejected this petition, however, noting that Arizona law bars relief on a claim that could have been raised in a previous collateral proceeding.

After exhausting his state appeals options, Martinez petitioned for habeas corpus in U.S. District Court. He argued that he had been prejudiced by the ineffectiveness of his first postconviction counsel. Nevertheless, a federal judge denied the petition, and the 9th Circuit affirmed in September 2010.

"The Supreme Court has never recognized a federal constitutional right to the assistance of counsel in collateral review proceedings," Judge John Wallace wrote for the court's three-judge panel.

Wallace pointed to the Supreme Court's conclusion that "the Constitution did not require the appointment of counsel to an indigent defendant seeking second-tier review or other discretionary review."

After taking up the case in June, a majority of justices expanded on the precedential case, Coleman v. Thompson.

"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," according to the majority led by Justice Anthony Kennedy. "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 court can hear ineffective-assistance claims if the inmate can establish cause to excuse the procedural default. "There is no dispute that Arizona's procedural bar on successive petitions is an independent and adequate state ground," Kennedy wrote.

"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," he added. "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."

On remand, the court must address the issue of prejudice and determine whether the first postconviction attorney assigned to Martinez was ineffective, or whether Martinez has a substantial claim of ineffective assistance of trial counsel.

Justice Clarence Thomas joined in Scalia's dissent, which drips with sarcasm, scare quotes and strategic italicization.

"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 jurisprudence 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," Scalia wrote. "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 proce­dural 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."

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