Shinn v. Ramirez, 20-1009 (05/23/2022)

On Monday, May 23, 2022, the Supreme Court, once again tightened the entry door for postconviction relief in most state cases. In Shinn v. Ramirez, 20-1009, the court held that under 28 U.S.C. § 2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state court record based on the ineffective assistance of state postconviction counsel.  In essence, if the attorney fails to timely file a document, develop a defense, or is just legally wrong on the avenues pursued, the federal court is not allowed to develop the record further beyond what is already on the record in the state court.  What you see in the state record is what you get in Federal Court.  The record must be developed sufficiently to allow the Federal Court to review the claim with nothing more.

The Shinn v. Ramirez case in a nut shell.

To put the decision into perspective, a history of the case is required: David Martinez Ramirez and Barry Lee Jones were each convicted of capital crimes in Arizona state court and sentenced to death. The Arizona Supreme Court affirmed each case on direct review, and each prisoner was denied state postconviction relief. Each also filed for federal habeas relief under 28 U. S. C. §2254, arguing that trial counsel had been ineffective for failing to conduct an adequate investigations.

The Federal District Court held in each case, that the prisoner's ineffective-assistance claim was procedurally defaulted because it was not properly presented in state court. To overcome this procedural default, a prisoner must demonstrate “cause” to excuse the procedural defect and “actual prejudice.” See Coleman v. Thompson, 501 U. S. 722, 750. To demonstrate cause, Ramirez and Jones relied on Martinez v. Ryan, 566 U. S. 1, which held that ineffective assistance of postconviction counsel may be cited as cause for the procedural default of an ineffective-assistance-of-trial-counsel claim. In Ramirez's case, the District Court permitted him to supplement the record with evidence not presented in state court to support his case to excuse the procedural default. Assessing the new evidence, the court excused the procedural default but rejected Ramirez's ineffective-assistance claim on the merits. The Ninth Circuit reversed and remanded for more evidentiary development to litigate the merits of Ramirez's ineffective-assistance-of-trial-counsel claim. In Jones' case, the District Court held a lengthy evidentiary hearing on “cause” and “prejudice,” forgave his procedural default, and held that his state trial counsel had provided ineffective assistance.

The State of Arizona petitioned the Supreme Court in both cases, arguing that 28 U. S. C. §2254(e)(2) does not permit a federal court to order evidentiary development simply because postconviction counsel is alleged to have negligently failed to develop the state-court record.  So now that we know how we got to this point, we can put the Supreme Court's decision into perspective.

Navigating a State Post-Conviction Appellate Process 

If your client is convicted in state court he first raises any constitutional infirmity with their conviction in his state court. Failure to do so “procedurally defaults” the claim and the federal court (with few exceptions that are now limited even further), cannot review your case.  Your federal review option is over.  That point is settled. 

However, in Martinez v. Ryan, 566 U. S. 1, the Supreme Court held that ineffective assistance of post-conviction counsel (note the difference between post-conviction counsel, versus trial counsel), may be cited as cause for the procedural default of an ineffective-assistance-of-trial-counsel claim.  Remember there is no constitutional right to counsel in state postconviction proceedings, a prisoner must ordinarily “bea[r] responsibility” for all attorney errors during those proceedings, Williams v. Taylor, 529 U.S. 420, 432 (2000), including responsibility for counsel's negligent failure to develop the state postconviction record. The Supreme Court's prior cases make this point clear. See, e.g., Keeney v. Tamayo-Reyes, 504 U. S. 1; Williams, 529 U. S. 420; Holland v. Jackson, 542 U. S. 649 (per curiam). Thus, a prisoner is “at fault” even when state postconviction counsel is negligent.

  The reasoning was that if a state allows a prisoner to raise a claim of ineffective assistance of trial counsel for the first time in post-conviction proceedings (i.e., after the direct appeal is concluded), a lawyer's ineffectiveness at that stage of the case can constitute “cause” to excuse the procedural default.  At the same time, however, 28 U.S.C. § 2254(e)(2) of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) forbids, with limited exceptions, the federal court from holding an evidentiary hearing if the defendant “has failed to develop the factual basis of a claim in a state court proceeding.”  Basically, you need to raise or lose all your claims in your state case, not wait until you arrive in Federal Court. The question in Shinn was how to square Martinez's allowance for prisoners to raise a claim of ineffective assistance of trial counsel with AEDPA's apparent prohibition on developing evidence to support that claim.

The Martinez case is slowly melting away.

Visualize a piece of ice melting. It gets smaller and smaller until it's all gone. That is what is happening to the Martinez decision, except the Supreme Court is slowly causing the melting to occur. Martinez at least in part, is gone with two small and very limited exceptions. 

A prisoner “bears the risk in federal habeas for all attorney errors made in the course of the representation.” Coleman at 754.  And, because there is no constitutional right to counsel in state post-conviction proceedings, a prisoner must ordinarily “bea[r] responsibility” for all attorney errors during those proceedings, including responsibility for counsel's negligent failure to develop the state post-conviction record. Id. Williams. The Supreme Court's prior cases make this point clear. See, e.g., Keeney v. Tamayo-Reyes, 504 U. S. 1; Williams, 529 U. S. 420; Holland v. Jackson, 542 U. S. 649 (per curiam). So, a prisoner is “at fault” even when the state postconviction counsel is negligent.  That is a tough scenario to be placed in, either by the attorney or the inmate.

Martinez still provides some hope - but don't count on it.

Before the Ramirez decision a glimmer of hope existed.  If the prisoner “failed to develop the factual basis of a claim in State court proceedings,” a federal court was not permitted to hold an evidentiary hearing on the claim unless the prisoner satisfies one of two narrow exceptions, (28 U.S.C. § 2254(e)(2)(A))^[1] and demonstrates that the new evidence will establish his innocence “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(2)(B).

However, in all but these extraordinary cases, the AEDPA “bars evidentiary hearings in federal habeas proceedings initiated by state prisoners.” McQuiggin v. Perkins, 569 U. S. 383, 395 (2013).  So, this created a problem (as if the inmate does not have enough problems), Title 28 U.S.C. § 2254(e)(2)(A) permitted a glimmer of hope with two possible exceptions, but the AEDPA bars evidentiary hearings in federal habeas proceedings initiated by state prisoners.  Interesting, who controls at this stage the steps to follow?  Any doubt was quickly and incorrectly closed by the Ramirez decision.

The Supreme Court in Ramirez determined that the equitable rule announced in Martinez [emphasis is mine] does not permit a federal court to dispense with 28 U.S.C. § 2254(e)(2)(A)'s narrow exceptions.  In other words, only the two exceptions noted in the statute are the permitted reasons for the court to address a hearing. Otherwise, its over. What was learned by this decision is what we have always mentioned, you need to develop your record and raise all your claims in state court or lose them forever. Ramirez is yet another nail in the coffin of post-conviction relief.  

How the Federal Research Group can assist you and your client avoid these hurdles and possibly - obtain relief.  

As with every post-conviction matter developing  proper defense arguments and a proper record is mandatory for your client's relief.  There is no "later, tomorrow, we can try this in Federal Court" that does not work. It just does not exist anymore without a proper record.  As we have always said, “a Team approach is the best approach for you and your client.”  Use our Team to assist your Team. Usually, post-conviction is the last opportunity to open a door for relief, don't allow this door to shut once and for all.

Feel free to contact us today to see how our Team and assist your defense Team with your clients postconviction matters. 

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[1] Title 28 U. S. C. §2254(e)(2)(A):

(1)  In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2)  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 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.