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.