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A Major Setback for Prisoner's Seeking Federal Habeas Relief

Recently, in Shinn v. Ramirez, the United States Supreme Court dealt state prisoners a major setback by handing down a decision that basically makes the Sixth Amendment’s guarantee of effective assistance of counsel meaningless.

Under the Sixth Amendment, criminal defendants enjoy the right to effective assistance of counsel. This core principle underpins our entire criminal justice system. State’s appoint professional adversaries against defendants in the form of prosecutors, and whether appointed a public expense or privately retained, criminal defendants are supposed to be guaranteed the right to professional advocates to represent them.

All too often, however, criminal defendants receive ineffective representation. Failure to investigate and obtain evidence or mitigation evidence, failure to understand the law, failure to raise meritorious objections, failure to file appropriate pretrial motions, the list of potential ineffectiveness claims is extensive. Most attorneys, however, are deemed effective because the law requires deference in most cases to an attorney’s strategic or tactical decisions in a case.

Where there is ineffectiveness, however, a criminal defendant is entitled to raise those claims in postconviction proceedings in state court, and if the state court fails to correct them, a criminal defendant may apply for federal habeas relief to vindicate their Sixth Amendment right to effective counsel.

But as noted above, a criminal defendant is required to bring all errors to the attention of the state court before arriving in federal court. This is called “exhaustion.” A defendant must exhaust his or her ineffective claims in state court proceedings before raising them in federal proceedings, and the failure to do so results in what is known as “procedural default.”

With few exceptions, a federal court will not hear a procedurally defaulted claim. A defendant may be able to demonstrate in some cases that the failure exhaust the claim in state court was not their fault. In other words that they were prevented from raising the claim by events or actions outside of their control. One such exception is the exception announced by the United States Supreme Court in Martinez v. Ryan.

In Martinez, the Supreme Court held that if a prisoner lives in in a state that does not appoint an attorney to raise ineffective assistance of counsel claims, or if a prisoner was self-represented in collateral proceedings and failed to raise a substantial ineffective assistance claim, they may be excused for the failure to exhaust the claim. In other words, if postconviction counsel was ineffective, or if a pro se litigant who is untrained in the law fails to discover a valid postconviction claim, the otherwise defaulted claim can be presented for the first time in federal habeas proceedings.

Enter Shinn: Now the Supreme Court has rendered Martinez all but meaningless. In Shinn, the Court decided that unless an ineffective assistance of counsel claim was litigated in state court, and a record was developed, a federal court may not conduct an evidentiary hearing on the claim.

So even through a prisoner can raise a claim under Martinez by making prima facie showing entitling them to relief, those claims can no longer be proved up at a federal evidentiary hearing unless a factual record related to the claim was already developed in the state court.

What does this mean? It means that the Court illogically requires to have made a record for a claim you didn’t even know about, (which is the point of Martinez), in order to have the opportunity to further develop it in federal court.

The result is that Martinez’s recognition that the ineffectiveness of postconviction counsel or pro se representation should excuse otherwise procedurally defaulted ineffectiveness claims is meaningless because even if you raise such a claim, you cannot get a federal hearing on it unless you already had one in state court. The holding is supremely devoid of all logic. And if Martinez is meaningless, so too is the Sixth Amendment right to effective assistance of trial counsel, because Shinn has raised an impenetrable barrier to litigate Martinez claims in federal court.

A federal judge considering a Martinez claim must now decide solely on the pleading and whatever attachments may be included if a trial counsel was ineffective on the face of the record before the court. This is almost impossible to demonstrate because an attorney is almost always required to testify at an evidentiary hearing to explain why he or she took or failed to take the actions that they did. Only then can a court properly decide an ineffectiveness claim.

It is now a waste of time to raise any claims under Martinez, (unless you have a time machine and can somehow go back in time and exhaust them). So that is what Shinn really does: It resurrects the law prior to Martinez that precluded consideration of procedurally defaulted claims even if postconviction counsel was ineffective and even if a pro se non-lawyer prison litigant failed to discover them. The message from the court is clear: The State’s interest in convictions remaining final is more important than the, now illusory, Sixth Amendment right to effective assistance of counsel.

This is terrible and disheartening setback for all state prisoners. It is now more important than ever for a state prisoner to be absolutely sure that he or she raises every possible ineffectiveness claim in the state court because it will be too late if the claims only discovered after state court proceedings are concluded.

Hopefully when the current supermajority of the Supreme Court changes, the Court will wake up and recognize the erosion it caused of the constitutional protections of the Sixth Amendment and will recede from the epically wrongful decision it handed down in Shinn.

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