The Supreme Court recently added sixteen new cases to its docket. Although none of these cases will garner the sort of media attention that comes from blockbuster constitutional rulings on such hot-button topics as abortion, affirmative action, or gun control, all present important issues that have arisen in the ordinary course of litigation in the lower courts. One of the cases—Davila v. Davis—presents a fundamental question: whether a criminal defendant should pay with his life for an error made by his lawyer?
To the uninitiated, the answer would seem obvious: of course not. How could a civilized system of criminal justice allow a death sentence to stand when that sentence is the result of the defendant’s lawyer’s incompetence?
Yet those of us who study and practice in the area of federal habeas corpus realize that the real question is not whether a defendant can be put to death because of his lawyer’s incompetence. The law often allows that. Although the number of executions has fallen in recent years, there is little reason to think that the pattern of death sentences has changed since the Yale Law Journal published an article in 1994 aptly subtitled “The Death Sentence Not for the Worst Crime but for the Worst Lawyer.” Thus, the real question posed by Davila is merely when the law allows lawyer incompetence to lead to an execution.
The Facts of Davila
Like many cases that present issues of general importance to the criminal justice system, the Davila case does not involve a sympathetic defendant. There is no doubt that Davila committed intentional murder when he shot and killed a grandmother and her five-year-old granddaughter who were attending an eleven-year-old’s birthday party.
Nonetheless, Davila argues that he should not have been convicted of capital murder. He says that the government needed to prove that he intended to kill more than one person, but an instruction from the trial judge in response to a jury question permitted his conviction based on a finding that he intended to kill only one person.
Whether that objection is valid depends ultimately on a question of Texas law, and the U.S. Supreme Court does not review state court determinations of state law. The case is before the high Court on a derivative issue. Davila contends that his appellate lawyer, in failing to object to the allegedly erroneous instruction, acted so incompetently as to deny Davila the effective assistance of counsel guaranteed by the federal Sixth Amendment.
Yet the case does not directly present the Sixth Amendment issue either. Instead, Davila raises a question about the scope of relief available to state prisoners who bring federal habeas corpus petitions.
Ineffective Assistance as “Cause” for “Procedural Default”
Under the current version of a law first enacted in 1867, persons convicted of crimes in state court may challenge their custody or sentence by bringing a federal court habeas corpus petition alleging that the custody or sentence violates the federal Constitution. Despite the breadth of the basic habeas provision, various statutory amendments and judge-made limits make it difficult for prisoners to obtain such relief.
One judge-made limit is the doctrine of procedural default. It says that if a prisoner had the opportunity to present his federal constitutional claim to a state court but failed to avail himself of that opportunity, he has “defaulted” that claim and thus cannot have it heard by a federal habeas court. In recognition of the potential for unfairness of the procedural default principle, however, the Supreme Court has allowed that where a state prisoner can demonstrate that he had good “cause” for the default and would be “prejudiced” by its enforcement, the default will be excused and the claim heard.
How does the procedural default doctrine apply to Davila’s case? After Davila’s direct appeal but before he filed his federal habeas petition, he filed a state court habeas petition. His state habeas attorney made a number of claims on Davila’s behalf in that petition but did not contend that Davila’s lawyer on the direct appeal was constitutionally deficient for failure to object to the jury instruction. Thus, when Davila filed his federal habeas petition making that claim, the state argued that it was beyond the court’s power to hear: When Davila’s state habeas lawyer failed to argue that Davila’s state direct appeal lawyer was ineffective for failing to object to the jury instruction, the state said, the claim was defaulted. The district judge who heard the federal habeas claim agreed, as did the U.S. Court of Appeals for the Fifth Circuit.
In rejecting Davila’s federal habeas petition, the district court and court of appeals had to distinguish two relatively recent Supreme Court precedents. In the 2012 case of Martinez v. Ryan, the high Court held that if a state habeas attorney’s performance falls below the threshold of effective assistance of counsel, that incompetence is good cause to excuse the procedural default of an underlying claim that the defendant’s trial counsel was also constitutionally ineffective. The Court applied that principle again the next year in Trevino v. Thaler.
Davila argued in the district court and before the Fifth Circuit that the principle of Martinez and Trevino should apply equally to his case. Those cases say ineffective assistance of state habeas counsel excuses the default of a claim of ineffective assistance of trial counsel. Davila said that ineffective assistance of state habeas counsel therefore also excuses the default of a claim of ineffective assistance of appellate counsel.
The Scope of the Martinez and Trevino Precedents
Why, then, did the appeals court rule that the default was not excused? The Fifth Circuit did not elaborate, instead citing one of its earlier rulings to the same effect. That ruling in turn cited yet another ruling, which, finally, simply stated that in Martinez the Supreme Court said that its rule applied only to claims of ineffective assistance of trial counsel, without disturbing the prior general rule—announced in the 1991 case of Coleman v. Thompson—that the ineffectiveness of state habeas counsel does not constitute good cause for excusing most procedural defaults.
The Fifth Circuit decision not to extend Martinez and Trevino was a plausible construction of those cases. However, there was equal or greater plausibility to Davila’s argument that there is no real difference between the default of an underlying claim of ineffective assistance of trial counsel versus appellate counsel. The fact that the Supreme Court in Martinez confined its ruling to trial counsel cases could simply reflect the traditional practice of judicial modesty: The Court did not say that the principle goes further because, given the facts before it, there was no occasion to consider its potential application to other cases.
So why, according to the State of Texas, shouldn’t Martinez and Trevino be deemed to apply to a claim like Davila’s? The state’s brief in opposition to the certiorari petition (called an “op cert” in the trade) argued that even if Martinez and Trevino were extended to claims of ineffective assistance of appellate counsel, that would not benefit Davila because his underlying claim is weak. Now that the Court has granted review, however, that issue is beside the point. If Davila prevails in the Supreme Court, it will be open to the state to argue on remand that his claim should be rejected on the merits.
Somewhat surprisingly, the state’s op cert did not say why, in its view, Martinez and Trevino should not apply to claims of ineffective assistance of appellate counsel. As Davila’s attorney noted in a reply brief, the op cert reads more like a brief to the Fifth Circuit than to the U.S. Supreme Court. Presumably the state will supply some substantive reason to distinguish Martinez and Trevino in its merits brief.
What might that reason be? The state might argue that the right to trial counsel is of such surpassing importance that claims of ineffective assistance of trial counsel should be heard notwithstanding their default via state habeas counsel incompetence, but that no other claims warrant this special treatment. This argument would need to warn of the risk that without such a limit, Martinez and Trevino would expand into a freestanding right to effective assistance of state habeas counsel. That, in turn, would mean overruling Coleman and, more importantly, placing a heavy financial burden on state criminal justice systems. Indeed, the state could argue that the effect might be perverse. Because states are under no constitutional obligation to provide state habeas review at all, a mandate to provide adequate counsel when they do permit state habeas could lead some states to eliminate state habeas altogether.
Accordingly, for Davila to prevail, he will need to persuade the high Court that some other line can be drawn to preserve the general rule of Coleman. What other line is there?
Davila could say that all claims of ineffective assistance of counsel—whether at trial or on appeal—are special, but this is not obviously right. What about a claim of race discrimination in jury selection? Of improper admission of a coerced confession? There are many important constitutional rights of criminal defendants. It is not clear that effective assistance of counsel is qualitatively more important than the others.
A better line for Davila is suggested by the opinions in Martinez and Trevino themselves. In those cases, the Supreme Court emphasized that state habeas review provided the first genuine opportunity for a defendant to complain about ineffective assistance of trial counsel. In Martinez it was literally the first legal opportunity; in Trevino it functioned that way. Likewise, Davila can say that the first real opportunity to complain about the ineffectiveness of counsel on direct appeal is in a state habeas proceeding.
Thus, under the line we can expect Davila to promote, a small number of other defaulted claims would be excused by ineffective assistance of state habeas counsel. For example, a claim that the prosecution wrongly withheld exculpatory material from the defense in violation of the 1963 due process ruling in Brady v. Maryland would not ordinarily be discoverable until after the trial and direct appeal. Under the line I am suggesting, a defendant whose state habeas lawyer incompetently failed to discover or present a Brady claim would have the resulting default excused for good cause. However, the general rule of Coleman would remain for claims that could be presented to the state courts before state habeas.
Accordingly, Davila can win in the Supreme Court without the adoption of a rule that amounts to a general-purpose right to counsel for state habeas petitioners. If Davila wins such a relatively narrow victory, many criminal defendants in America would still pay the price for their attorneys’ poor performance. But at least some measure of that injustice would be mitigated.