by Dale Chappell

In yet another case further limiting the federal habeas corpus remedy, the Supreme Court of the United States (“SCOTUS”) held on May 23, 2022, that post-conviction counsel’s failure to develop a meritorious claim in state court does not excuse the bar to an evidentiary hearing in the federal court, regardless of how egregious trial counsel’s error was.

The case arose from two separate death-penalty cases in Arizona that occurred 30 years ago. Both cases were granted federal habeas relief, with the federal courts each holding an evidentiary hearing and finding that postconviction counsel’s failure to develop the claim of trial counsel’s ineffective assistance bypassed the bar on a federal evidentiary hearing. The State appealed to SCOTUS in both cases, and the Court consolidated them for appeal.

SCOTUS presented the question this way: “The question presented is whether the equitable rule announced in Martinez permits a federal court to dispense with § 2254(e)(2)’s narrow limits because a prisoner’s state postconviction counsel negligently failed to develop the state-court record.”

The Court’s answer was rather straight-forward: “A federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” However, the Court’s reasoning for its decision dealt another serious and far-reaching blow to federal habeas corpus, according to the three dissenting Justices.

A Federal Habeas Court May Not Hear a Defaulted Claim, But There Are Exceptions

In general, a claim brought before a federal habeas court that is procedurally-defaulted cannot be heard by the court. But there are exceptions to this judge-made rule. SCOTUS reiterated that a claim raised in a federal habeas petition must first be presented in the state court. Woodford v. Ngo, 548 U.S. 81 (2006). This rule, the Court said, “affords states an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights,” thereby protecting state-federal comity.

But federal courts may excuse procedural default if the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722 (1991). Cause is established when “some objective factor external to the defense impeded counsel’s efforts to comply with the state’s procedural rule,” and prejudice is established by showing that the constitutional violation “worked to [the petitioner’s] actual and substantial disadvantage.” Murray v. Carrier, 477 U.S. 478 (1986).

AEDPA’s Evidentiary Hearing Bar Is Not the Same as Procedural Default

In the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Congress added a bar that prevents a federal habeas court from holding an evidentiary hearing, unless certain criteria are met: “If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence, and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2).

The Court noted a distinction between § 2254(e)(2) and procedural default and focused on the language, “if the applicant has failed to develop the factual basis of a claim in state court proceedings.” The Court ruled that this made any errors by counsel “attributable” to the habeas petitioner, since “the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error.”

If the failure to develop the factual basis in state court for a habeas claim was not the fault of the petitioner or their lawyer, however, then § 2254(e)(2)’s bar does not apply, the Court reiterated. But that was not the situation in this case, and the petitioners were required, by law, to meet all of the exceptions under § 2254(e)(2) to obtain an evidentiary hearing in federal court, the Court stated.

While the Court made clear that § 2254(e)(2)’s bar is mandatory and the exceptions must be met for an evidentiary hearing in federal court, if the petitioner is at fault for the undeveloped claim, it implicitly recognized that § 2254(e)(2) is not a jurisdictional bar when it acknowledged the State’s “forfeiture” of the argument in the lower courts and “forgave” that forfeiture for this appeal.

The Martinez Exception Does Not Apply to the AEDPA’s Evidentiary Hearing Bar

In Martinez v. Ryan, 566 U.S. 1 (2012), SCOTUS created a “narrow exception” to the rule that attorney error cannot establish cause to excuse a procedural default and held that ineffective assistance of state postconviction counsel may excuse a procedurally-defaulted ineffective assistance of trial counsel claim, if the state requires such claims to be raised in a postconviction action and not on appeal. This was true, the Court said, even though there is no constitutional right to counsel in postconviction proceedings, like there is in a criminal proceeding.

Again, the Court distinguished procedural default from the evidentiary hearing bar under §2254(e)(2): “But § 2254(e)(2) applies whenever any state prisoner failed to develop the factual basis of a claim, without limitation to any specific claim. There would be no reason to limit [the petitioners’] reconstruction of § 2254(e)(2) as they propose. Unlike for procedural default, we lack equitable authority to amend a statute to address only a subset of claims. Thus, if a prisoner were not “at fault” under § 2254(e)(2) simply because postconviction counsel provided ineffective assistance, the prisoner’s blamelessness would extend to any claim that postconviction counsel negligently failed to develop. Not even Martinez sweeps that broadly.”

The Court rejected what it said would be a “rewrite” of § 2254(e)(2), adding that Martinez “addressed only one kind of claim: ineffective assistance of trial counsel.” The Court said that trial-ineffective-assistance claims are “uniquely important.” Thus, the Martinez exception to procedural default for ineffective assistance of trial counsel claims doesn’t apply to § 2254(e)(2)’s evidentiary hearing bar.

Justices Sotomayor, Kagan, and Breyer dissented, noting that neither the AEDPA nor SCOTUS’ precedents lead to the outcome the Court reached: “This decision is perverse. It is illogical: It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in post-conviction proceedings, as Martinez and Trevino [v. Thaler, 569 U.S. 413 (2013)] did, but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim. In so doing, the Court guts Martinez’s and Trevino’s core reasoning. The Court also arrogates power from Congress: The Court’s analysis improperly reconfigures the balance Congress struck in the (AEDPA) between state interests and individual constitutional rights.”

Regardless, the majority’s opinion held that the only exceptions to the evidentiary hearing bar under § 2254(e)(2), when the petitioner is at fault for failing to develop the claim in state court, are the ones listed in the statute, and they must be met for a federal court to hold an evidentiary hearing. See: Shinn v. Ramirez, 2022 U.S. LEXIS 2557 (2022). 

Writer’s note: While the Court’s ruling is disturbing, it thankfully doesn’t apply to too many state prisoners seeking federal habeas relief. Fewer than 2% of federal habeas cases result in evidentiary hearings, out of tens of thousands filed each year. And when the federal court does hold a hearing, it’s usually because the state court erred in not holding a hearing, in my experience, and not because the petitioner failed to develop the record for the claim.

This makes the Court’s ruling here rather empty. But the concerning part is Justice Thomas’ rants about how federal habeas corpus has been undoing countless state convictions and setting convicted people free. His rants are baseless, of course, but he has taken numerous dissenting opinions that he’s joined over the years in cases that have expanded habeas relief to state prisoners and turned them into a majority opinion in not only this case but another one he authored shortly before this one—Brown v. Davenport, 142 S. Ct. 1510 (2022).

In Davenport, Thomas led the majority of conservative Justices to a decision that even if a state prisoner can show that a trial error had a “substantial and injurious effect” on his case, he must still overcome the AEDPA’s deference standard under § 2254(d). Again, his opinion there affects few petitioners, but the discussion in the opinion all but eviscerates the importance of habeas corpus in protecting constitutional rights. I believe the Court is on a dangerous path to upend the few protections left for prisoners in the federal courts against violations of their fundamental rights.

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