Martinez v. Ryan: Monstrosity or Mouse?

This week the Supreme Court issued its opinion in Martinez v. Ryan. By a 7-2 vote, the court held that: 

Where, under state law, ineffective-assistance-of-trial-counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Previously, a claim that has been defaulted by a state court cannot be raised in federal habeas, absent a narrow exception for situations that were external to the inmate—of which attorney error was not one. In so holding, the Court explicitly refused to answer the question that it had actually granted certiorari on, which was whether there is a right to the effective assistance of counsel in an initial review habeas corpus proceeding—that being a proceeding in which a specific claim cannot be raised at any prior time. While the Court’s narrow holding did not provide a new right, it does provide a potential remedy for inmates receiving ineffective assistance of post-conviction counsel.

While criticizing the majority decision, dissenting Justice Scalia labeled the decision a “monstrosity”, and lamented the major impact that the ruling would have on both the states and the court system. Post Martinez, he argues that states would be insane to not provide inmates with post-conviction counsel, because a failure to do so acts as a free pass to federal habeas. His is also distressed with the amount of time that courts will have to dedicate to this new issue.

But, is this an accurate view of the impact of Martinez? For all practical effect, a close reading of the opinion reveals that it may have limited practical scope. By not creating a right to post-conviction counsel, most inmates in non-capital cases will still proceed pro se. Claims of ineffective assistance of counsel, as noted by the majority, are nearly impossible to establish without the benefit of an attorney. So, now inmates without counsel may be able to bring a claim that would be previously defaulted, but the chance that they will be able to establish it is slim. Those that do receive counsel for their post-conviction claims still face a nearly impossible burden. They will have to be able to establish that both their trial counsel and post-conviction counsel provide ineffective assistance under the standard outlined in Strickland v. Washington. This requires both establishing deficient performance and prejudice, and is a difficult burden to meet even one, let alone twice.

Martinez poses an number of interesting questions going forward, but it appears that while it will, at the very least, result in a pleading revolution based upon this new remedy, the practical effect may be slight. Only time will tell.