DANIELLE BUKACHESKI—The United States Constitution guarantees a Sixth Amendment right to counsel in criminal trials. This right to representation applies to all defendants, regardless of socioeconomic status, and thus requires the appointment of counsel through the public defense system when a defendant is indigent. In Gideon v. Wainwright, the Supreme Court case spawning the public defense system, Justice Hugo Black noted, “That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.”
Of course, legal representation does not guarantee quality representation and a fair trial. In a review of convictions overturned by DNA testing, the Innocence Project uncovered instances of attorneys sleeping through trials, failing to investigate alibis, failing to call expert witnesses, and failing to show up for hearings. In other words, an attorney’s incompetence can directly lead to the conviction of an innocent person. Under Strickland v. Washington, the Supreme Court found the Sixth Amendment right to counsel is violated when (1) counsel’s performance is deficient and (2) the deficient performance prejudiced the defense so as to deprive the right to a fair trial.
If a defendant was deprived of a fair trial because of an error made by their attorney, the judge, the jury, or another articulable factor, they are entitled to appeal their case. Problematically, direct appeals are limited to the “four-corners” of the trial (i.e., limited to the evidence in the trial record) and appellate judges are usually deferential to trial judges. Therefore, a claim for inefficient counsel is more appropriately raised during postconviction proceedings when the defendant can introduce evidence of counsel’s failure.
The writ of habeas corpus is a postconviction remedy that is available to state and federal prisoners who want to challenge the legality of their current incarceration. However, under 28 U.S.C. § 2254(b)(1)(A), federal habeas relief is available to state inmates only after state remedies have been exhausted. Habeas corpus finds its roots in Article 1, Section 9 of the U.S. Constitution, which provides that only Congress has the power to suspend the writ of habeas corpus in “Cases of Rebellion or Invasion [when] the public safety may require it.” Recently, Congress narrowed the writ of habeas corpus through the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996. Now, under AEDPA, (1) there is a one-year statute of limitations on filing habeas petitions; (2) petitioners are prevented from filing multiple habeas petitions unless granted permission from a U.S. Court of Appeals; and (3) federal habeas relief is not even available unless the state court’s findings were “contrary to . . . clearly established federal law as determined by the Supreme Court of the United States” (i.e., Strickland v. Washington) or an “unreasonable determination of the facts.” In sum, AEDPA has restricted access to habeas relief and imposed strict, confusing, and unforgiving time limitations that can procedurally bar even the most skilled postconviction attorneys.
Now, in light of AEDPA, how would a petitioner who, hypothetically, has a strong claim for ineffective assistance of trial and state postconviction counsel fare in their request for federal habeas relief? In Shinn v. Ramirez, decided in May 2022, the Supreme Court emphasized the necessity to first present the ineffective assistance of counsel claim, including supporting evidence, in state postconviction proceedings before seeking federal relief. The Court reasoned that federal habeas relief is an “extraordinary remedy” that should be used sparingly because it overrides a state’s decision-making power. According to Justice Thomas, to go around state court would be “unseemly.” Therefore, if petitioner’s counsel failed to develop the factual basis of a claim in state court, the petitioner is barred from holding an evidentiary hearing on the claim in federal court unless the claim satisfies an exception under 28 U.S.C. § 2254 (e)(2).
Petitioner Ramirez had a colorable claim for ineffective assistance of trial counsel. After his conviction and death sentence was affirmed on direct appeal, Ramirez’s postconviction counsel filed a petition for postconviction relief in state court. The petition excluded the ineffective assistance of trial counsel claim. After the petition was denied, Ramirez filed a federal habeas petition, raising the ineffective assistance of counsel claim, and the federal district court thereafter provided new counsel “due to concerns regarding the quality of representation.”
Even though Ramirez did first seek postconviction relief in state court, the Supreme Court found the omission of the ineffective assistance of counsel claim to be inexcusable. Thus, in accordance with AEDPA’s requirement to exhaust state remedies before seeking federal habeas relief, Ramirez was procedurally barred. Despite the Sixth Amendment right to counsel, the Court stated that the right does not extend to state postconviction proceedings. As a result, any deficient performance in state postconviction proceedings is the defendant’s fault and the defendant must bear the risk of attorney error, even when the unqualified postconviction counsel was court appointed.
In a criminal legal system that emphasizes the constitutional right to effective assistance of counsel, Shinn v. Ramirez is “illogical” and “perverse,” as Justice Sotomayor stated in her dissent. Barry Lee Jones, an additional respondent in Shinn, has consistently maintained his innocence, yet both his trial and state postconviction attorneys failed to properly investigate his innocence claim. It was only during the federal habeas stage that his postconviction counsel found evidence of his innocence sufficient to convince four federal judges of Jones’ wrongful conviction. But because Shinn holds Jones responsible for the failures of his state postconviction attorneys, Jones still faces execution. If our criminal legal system is designed to use postconviction proceedings as the safety net for injustices at the trial and appellate stages, it is essential that the Sixth Amendment is extended to guarantee representation by skilled attorneys who are specifically qualified for state and federal postconviction litigation. Otherwise, potentially innocent people will bear the burden of their attorney’s failures.
