Supreme Court Case Threatens to Deny Access to Federal Courts to Death-Row Prisoners Who Received Ineffective State Representation

Nine dif­fer­ent groups of advo­cates, includ­ing for­mer pros­e­cu­tors and judges, lead­ing legal schol­ars, inno­cence advo­cates, and defense attor­neys, have filed friend-of-the-court ami­cus briefs in the United States Supreme Court ask­ing the court to rule in favor of Arizona death-row pris­on­ers Barry Jones and David Ramirez in cas­es that could have broad impli­ca­tions for the avail­abil­i­ty of fed­er­al judi­cial review of state convictions. 

The briefs, filed on September 22, 2021, urge the court to reject Arizona pros­e­cu­tors’ efforts to lim­it the evi­dence a fed­er­al court can con­sid­er in review­ing cas­es in which state pris­on­ers have been pro­vid­ed inef­fec­tive rep­re­sen­ta­tion, say­ing it threat­ens to deny pris­on­ers mean­ing­ful access to the fed­er­al courts after their state court pro­ceed­ings have already been com­pro­mised by poor rep­re­sen­ta­tion. The ami­ci, who include the Innocence Network, the American Bar Association, the Federal Defender Capital Habeas Units, and more than two dozen high-rank­ing for­mer fed­er­al pros­e­cu­tors, say that the Arizona fed­er­al courts cor­rect­ly con­sid­ered evi­dence first pre­sent­ed in fed­er­al court in grant­i­ng Jones a new tri­al and that the fed­er­al appeals court appro­pri­ate­ly grant­ed Ramirez an evi­den­tiary hear­ing on his claim that his tri­al coun­sel pro­vid­ed inef­fec­tive rep­re­sen­ta­tion in the sen­tenc­ing phase of his death penalty trial. 

The men’s cas­es will be heard togeth­er as Shinn v. Ramirez and Jones on November 1, 2021. 

The Issues in Jones and Ramirez

The cas­es share key char­ac­ter­is­tics: Jones and Ramirez both alleged that had been pro­vid­ed a suc­ces­sion of inef­fec­tive lawyers who failed to ade­quate­ly present crit­i­cal legal issues: Jones’ evi­dence of inno­cence and Ramirez’s evi­dence of intel­lec­tu­al dis­abil­i­ty and oth­er men­tal health prob­lems. After pro­vid­ing the men inef­fec­tive rep­re­sen­ta­tion at tri­al, they say, Arizona also pro­vid­ed them inef­fec­tive state post­con­vic­tion lawyers who failed to chal­lenge tri­al counsel’s defi­cient per­for­mance. In both cas­es, the cru­cial evi­dence to estab­lish their counsel’s inef­fec­tive­ness could not have been pre­sent­ed until they reached fed­er­al court and were pro­vid­ed com­pe­tent rep­re­sen­ta­tion in their fed­er­al habeas corpus proceedings. 

As a gen­er­al rule, fed­er­al habeas cor­pus law requires a state pris­on­er to raise an issue in state court before he or she may obtain review of the claim in fed­er­al court. However, in 2012, the U.S. Supreme Court ruled in Martinez v. Ryan — anoth­er Arizona case — that state pris­on­ers could nev­er­the­less chal­lenge the inef­fec­tive­ness of their tri­al coun­sel in fed­er­al habeas cor­pus pro­ceed­ings if they had been denied the oppor­tu­ni­ty to do so in state court because of inef­fec­tive post-conviction representation.

Jones had been con­vict­ed and sen­tenced to death on charges that he had sex­u­al­ly assault­ed and phys­i­cal­ly abused a four-year-old girl, caus­ing her death. With the evi­dence Jones’ fed­er­al lawyers pre­sent­ed in his habeas cor­pus evi­den­tiary hear­ing, Chief Judge Timothy Burgess of the U.S. District Court for the District of Arizona held that both Jones tri­al coun­sel and his state post-con­vic­tion coun­sel had failed to inves­ti­gate evi­dence that showed that the girl sus­tained the injuries on a dif­fer­ent day than the pros­e­cu­tion had claimed, at a time in which Jones could not have inflict­ed them, and that oth­er foren­sic evi­dence pre­sent­ed by the pros­e­cu­tion was false. The dis­trict court grant­ed Jones a new tri­al and a three-judge pan­el of the U.S. Court of Appeals for the Ninth Circuit unan­i­mous­ly affirmed that ruling. 

In Ramirez’s case, the fed­er­al dis­trict court ruled that he was barred from pre­sent­ing a claim that his tri­al coun­sel, who had nev­er tried a cap­i­tal case before, had been inef­fec­tive, ​“fail[ing] to present or pur­sue evi­dence of Ramirez’s intel­lec­tu­al dis­abil­i­ty, fail[ing] to pro­vide rel­e­vant and poten­tial­ly mit­i­gat­ing evi­dence to the psy­chol­o­gist who eval­u­at­ed Ramirez,” and then rely­ing on the psychologist’s report, even though she had evi­dence in her pos­ses­sion indi­cat­ing his dis­abil­i­ties were sub­stan­tial­ly worse. Finding that post-con­vic­tion coun­sel had failed to raise a ​“sub­stan­tial claim of inef­fec­tive assis­tance of tri­al coun­sel,” a pan­el of the Ninth Circuit reversed and direct­ed the dis­trict court to con­duct an evi­den­tiary hear­ing to per­mit Ramirez to fur­ther devel­op the facts. 

Arizona pros­e­cu­tors then asked the full cir­cuit to recon­sid­er the pan­els’ rul­ings, argu­ing that the fed­er­al habeas cor­pus statute lim­it­ed the defen­dants to the evi­dence that had been pre­sent­ed to the state court. Over the dis­sents of eight con­ser­v­a­tive judges, the cir­cuit left the rul­ings in place. The pros­e­cu­tors then filed a con­sol­i­dat­ed peti­tion for review in the U.S. Supreme Court and on May 17, 2021, the Court agreed to hear the cases. 

The Friend-of-the-Court Briefs

In their nine briefs in sup­port of Jones and Ramirez, the ami­ci all argued that Arizona’s posi­tion would evis­cer­ate Martinez and make habeas review of these claims a sham. 

Lawyers rep­re­sent­ing the cap­i­tal habeas units of the fed­er­al pub­lic defend­er offices across the coun­try — which are often called upon to pro­vide rep­re­sen­ta­tion in death penal­ty cas­es after pris­on­ers receive inef­fec­tive rep­re­sen­ta­tion in state court — told the court that ​“pre­sent­ing a new claim of inef­fec­tive assis­tance of tri­al coun­sel in a fed­er­al habeas pro­ceed­ing vir­tu­al­ly always requires adduc­ing evi­dence beyond the state-court record. Adopting Arizona’s inter­pre­ta­tion” of fed­er­al habeas law, they wrote, ​“would there­fore be tan­ta­mount to over­rul­ing Martinez.”

The American Bar Association wrote, “[w]ithout access to an evi­den­tiary hear­ing in fed­er­al court, pris­on­ers are no bet­ter off than they were in state court, with no mean­ing­ful oppor­tu­ni­ty to present their inef­fec­tive assistance claims.” 

The brief of the Arizona Capital Representation Project — whose work cen­ters on ​“improv­ing the qual­i­ty of rep­re­sen­ta­tion afford­ed to Arizona cap­i­tal defen­dants” — and the Arizona Center for Disabilities Law described Arizona’s sys­temic fail­ure to pro­vide ade­quate coun­sel for death-sen­tenced pris­on­ers. Their brief argued that Arizona has set low stan­dards for coun­sel, appoint­ed coun­sel who do not meet even those min­i­mal stan­dards, and failed to pro­vide ade­quate fund­ing for coun­sel, result­ing in ​“atro­cious rep­re­sen­ta­tion in cap­i­tal post-con­vic­tion cas­es, includ­ing in the cas­es of Mr. Ramirez and Mr. Jones.”

Legal experts note that those sys­temic fail­ures cre­at­ed the need for Martinez in the first place, but, they wrote, ​“Should this Court accept Petitioner’s argu­ments … Martinez will be rendered meaningless.” 

The Innocence Network warned the Court of the far-reach­ing and poten­tial­ly dan­ger­ous con­se­quences an adverse rul­ing on the cas­es would pose for inno­cent pris­on­ers. ​“Arizona’s posi­tion would,” the orga­ni­za­tion wrote, ​“car­ry the pro­found­ly unjust con­se­quence of pre­clud­ing habeas peti­tion­ers from devel­op­ing and pre­sent­ing claims of actu­al inno­cence.” The Network not­ed that “[a]n inno­cent indi­vid­ual who received inef­fec­tive assis­tance of coun­sel will often require the devel­op­ment of post-tri­al evi­dence to vin­di­cate his or her inno­cence claim. Without such evi­dence,” it explained, ​“basic fail­ures to inves­ti­gate can­not be cor­rect­ed, faulty foren­sic evi­dence can­not be unmasked, and the inno­cent indi­vid­u­als who are the vic­tims of these defi­cien­cies have no route to jus­tice. A fair and reli­able crim­i­nal process can­not tol­er­ate that outcome.”

A num­ber of groups addressed insti­tu­tion­al inter­ests that would be dam­aged if the Court over­turns the Ninth Circuit decisions. 

The Brief of Bipartisan Former Department of Justice Officials and Former Federal Prosecutors empha­sized that pub­lic con­fi­dence in the legal sys­tem depends upon access to effec­tive rep­re­sen­ta­tion. “[T]rial defects that dis­pro­por­tion­ate­ly impact eco­nom­i­cal­ly dis­ad­van­taged defen­dants are par­tic­u­lar­ly cor­ro­sive,” they wrote, ​“because they lead peo­ple to believe that the sys­tem is stacked against the poor and that defen­dants often are con­vict­ed (or sen­tenced to death) not because they actu­al­ly are guilty (or deserve to be exe­cut­ed) but because they can­not afford a good lawyer. This case puts these pub­lic con­fi­dence con­cerns square­ly at issue,” they said. 

A brief filed by six for­mer state supreme court jus­tices and two for­mer fed­er­al judges high­light­ed the impli­ca­tions of the case for due process. ​“Our sys­tem rests on the basic prin­ci­ple that every­one is enti­tled to her day in court,” their ami­cus brief explained. ​“In the habeas con­text, where lib­er­ty is at stake, crim­i­nal defen­dants must have one full and fair oppor­tu­ni­ty to present their claims, either in state or fed­er­al court.” The judges said Arizona’s posi­tion in the case left them ​“grave­ly con­cerned .… If accept­ed, that posi­tion will make fed­er­al judges com­plic­it in injus­tice, forced to ignore evi­dence of a petitioner’s inno­cence or of a seri­ous break­down in the crim­i­nal justice process.” 

The ABA raised sim­i­lar insti­tu­tion­al con­cerns. ​“Without the nar­row path­way that Martinez pro­vides for state pris­on­ers to avoid pro­ce­dur­al default, pris­on­ers seek­ing relief in fed­er­al courts on claims of inef­fec­tive assis­tance of tri­al coun­sel who also received inef­fec­tive rep­re­sen­ta­tion in state post-con­vic­tion pro­ceed­ings would lack even a sin­gle oppor­tu­ni­ty to mean­ing­ful­ly vin­di­cate the bedrock right to effec­tive rep­re­sen­ta­tion at trial.”

Two groups of emi­nent habeas cor­pus schol­ars wrote in sup­port of Ramirez and Jones. One group of nine schol­ars addressed the prin­ci­ples of equi­ty that formed the basis for the Martinez deci­sion. Historically, the schol­ars wrote, habeas cor­pus law did not bar a pris­on­er from fed­er­al review of a claim unless he or she was ​“at fault” for fail­ing to raise the claim in the state courts. Ineffective rep­re­sen­ta­tion is not a prisoner’s fault, they said. ​“Consistent with both the statute’s plain text and estab­lished prin­ci­ples of inter­pre­ta­tion, the Ninth Circuit cor­rect­ly con­clud­ed that [Jones and Ramirez] were not at fault for their under­de­vel­oped state-court records.” 

A sec­ond group of nine habeas schol­ars addressed Arizona’s argu­ment that per­mit­ting fed­er­al court evi­den­tiary devel­op­ment of inef­fec­tive assis­tance claims would be ​“open­ing the prover­bial lit­i­ga­tion flood­gates” in habeas cas­es. “[F]ar from grant­i­ng a ​‘free pass,’” they wrote, ​“fed­er­al courts have applied Martinez nar­row­ly and only in extraordinary circumstances.”

The Arizona Justice Project, which rep­re­sent­ed Luis Martinez, and the lawyer who argued his case in the Supreme Court filed a brief in sup­port of Ramirez and Jones in response to the argu­ment that Martinez should be over­ruled. The Project not­ed that Martinez was decid­ed by a 7 – 1 ​“super­ma­jor­i­ty” of the Court and the ques­tion of whether it should be over­ruled was not part of the issues the Court agreed to hear. “[T]his Court there­fore should not con­sid­er that issue,” they wrote. They also observed that Martinez is an ​“equi­table fed­er­al habeas rule” adopt­ed by the Court in a deci­sion that ​“pur­pose­ly avoid­ed” hav­ing to decide con­sti­tu­tion­al ques­tions con­cern­ing defen­dants’ rights to post­con­vic­tion coun­sel. Overruling Martinez, they warned, would require the Court to address that constitutional issue.