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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–10189
_________________
CARLOS TREVINO, PETITIONER
v. RICK
THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
on writ of certiorari to the united states
court of appeals for the fifth circuit
[May 28, 2013]
Justice Breyer delivered the opinion of the
Court.
In
Martinez v.
Ryan,
566 U.S. 1
(2012)
, we considered the right of a state prisoner to
raise, in a federal habeas corpus proceeding, a claim of
ineffective assistance of trial counsel. In that case an Arizona
procedural rule required a defendant convicted at trial to raise a
claim of ineffective assistance of trial counsel during his first
state collateral review proceeding—or lose the claim. The defendant
in
Martinez did not comply with the state procedural rule.
But he argued that the federal habeas court should excuse his state
procedural failing, on the ground that he had good “cause” for not
raising the claim at the right time, namely that, not only had he
lacked effective counsel during trial, but also he lacked effective
counsel during his first state collateral review proceeding.
We held that lack of counsel on collateral
review might excuse defendant’s state law procedural default. We
wrote:
“[A] procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the [State’s] initial-review
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.”
Id., at ___ (slip op., at
15).
At the same time we qualified our holding. We
said that the holding applied where state procedural law said that
“claims of ineffective assistance of trial counsel
must be
raised in an initial-review collateral proceeding.”
Ibid.
(emphasis added).
In this case Texas state law does not say
“must.” It does not on its face
require a defendant
initially to raise an ineffective-assistance-of-trial-counsel claim
in a state col- lateral review proceeding. Rather, that law appears
at first glance to permit (but not require) the defendant initially
to raise a claim of ineffective assistance of trial counsel on
direct appeal. The structure and design of the Texas system in
actual operation, however, make it “virtually impossible” for an
ineffective assistance claim to be presented on direct review. See
Robinson v.
State,
16 S.W.3d 808, 810–811 (Tex. Crim. App. 2000). We must now
decide whether the
Martinez exception applies in this
procedural regime. We conclude that it does.
I
A Texas state court jury convicted petitioner,
Carlos Trevino, of capital murder. After a subsequent penalty-phase
hearing, the jury found that Trevino “would commit criminal acts of
violence in the future which would constitute a continuing threat
to society,” that he “actually caused the death of Linda Salinas
or, if he did not actually cause her death, he intended to kill her
or another, or he anticipated a human life would be taken,” and
that “there were insufficient mitigating circumstances to warrant a
sentence of life imprisonment” rather than death. 449 Fed. Appx.
415, 418 (CA5 2011). The judge consequently imposed a sentence of
death.
Eight days later the judge appointed new counsel
to handle Trevino’s direct appeal. App. 1, 3. Seven months after
sentencing, when the trial transcript first became available, that
counsel filed an appeal. The Texas Court of Criminal Appeals then
considered and rejected Trevino’s appellate claims. Trevino’s
appellate counsel
did not claim that Trevino’s trial counsel had
been constitutionally ineffective during the penalty phase of the
trial court proceedings. Id., at 12–24.
About six months after sentencing, the trial
judge appointed Trevino a different new counsel to seek
state
collateral relief. As Texas’ procedural rules provide, that
third counsel initiated collateral proceedings while Tre- vino’s
appeal still was in progress. This new counsel first sought
postconviction relief (through collateral review) in the trial
court itself. After a hearing, the trial court denied relief; and
the Texas Court of Criminal Appeals affirmed that denial.
Id., at 25–26, 321–349. Trevino’s postconviction claims
included a claim that his trial counsel was constitutionally
ineffective during the penalty phase of Trevino’s trial, but it
did not include a claim that trial counsel’s ineffectiveness
consisted in part of a failure adequately to investigate and to
present mitigating circumstances during the penalty phase of
Trevino’s trial. Id., at 321–349; see
Wiggins v.
Smith,
539 U.S.
510, 523 (2003) (counsel’s failure to investigate and present
mitigating circumstances deprived defendant of effective assistance
of counsel).
Trevino then filed a petition in federal court
seeking a writ of habeas corpus. The Federal District Court
appointed another new counsel to represent him. And that counsel
claimed for the first time that Trevino had not received
constitutionally effective counsel during the penalty phase of his
trial in part because of trial counsel’s failure to adequately
investigate and present mitigating circumstances during the penalty
phase. App. 438, 456–478. Federal habeas counsel pointed out that
Trevino’s trial counsel had presented only one witness at the
sentencing phase, namely Trevino’s aunt. The aunt had testified
that Trevino had had a difficult upbringing, that his mother had an
alcohol problem, that his family was on welfare, and that he had
dropped out of high school. She had added that Trevino had a child,
that he was good with children, and that he was not violent.
Id., at 285–291.
Federal habeas counsel then told the federal
court that Trevino’s trial counsel should have found and presented
at the penalty phase other mitigating matters that his own
investigation had brought to light. These included, among other
things, that Trevino’s mother abused alcohol while she was pregnant
with Trevino, that Trevino weighed only four pounds at birth, that
throughout his life Trevino suffered the deleterious effects of
Fetal Alcohol Syndrome, that as a child Trevino had suffered
numerous head injuries without receiving adequate medical
attention, that Trevino’s mother had abused him physically and
emotionally, that from an early age Trevino was exposed to, and
abused, alcohol and drugs, that Trevino had attended school
irregularly and performed poorly, and that Tre- vino’s cognitive
abilities were impaired.
Id., at 66–67.
The federal court stayed proceedings to permit
Trevino to raise this claim in state court. The state court held
that because Trevino had not raised this claim during his initial
postconviction proceedings, he had procedurally defaulted the
claim,
id., at 27–28; and the Federal District Court then
denied Trevino’s ineffective-assistance-of-trial-counsel claim,
id., at 78–79. The District Court concluded in relevant part
that, despite the fact that “even the most minimal investigation
. . . would have revealed a wealth of additional
mitigating evidence,” an independent and adequate state ground
(namely Trevino’s failure to raise the issue during his state
postconviction proceeding) barred the federal habeas court from
considering the ineffective-assistance-of-trial-counsel claim.
Id., at 131–132. See
Coleman v.
Thompson,
501 U.S.
722, 729–730 (1991).
Trevino appealed. The Fifth Circuit, without
considering the merits of Trevino’s
ineffective-assistance-of-trial-counsel claim, agreed with the
District Court that an independent, adequate state ground, namely
Trevino’s procedural default, barred its consideration. 449 Fed.
Appx., at 426. Although the Circuit decided Trevino’s case before
this Court decided
Martinez, the Fifth Circuit’s reasoning
in a later case,
Ibarra v.
Thaler, 687 F.3d 222
(2012)
, makes clear that the Fifth Circuit would have found
that
Martinez would have made no difference.
That is because in
Ibarra the Circuit
recognized that
Martinez had said that its good-cause
exception applies where state law says that a criminal defendant
must initially raise his claim of ineffective assistance of
trial counsel in initial state collateral review proceedings. 687
F. 3d
, at 225–226. Texas law, the Circuit pointed out, does
not say explicitly that the defendant
must initially raise
the claim in state collateral review proceedings. Rather Texas law
on its face appears to
permit a criminal defendant to raise
such a claim on direct appeal.
Id., at 227. And the Circuit
held that that fact means that
Martinez does not apply in
Texas. 687 F. 3d
, at 227. Since the Circuit’s holding in
Ibarra (that
Martinez does not apply in Texas) would
similarly govern this case, we granted certiorari here to determine
whether
Martinez applies in Texas.
II
A
We begin with
Martinez. We there
recognized the historic importance of federal habeas corpus
proceedings as a method for preventing individuals from being held
in custody in violation of federal law.
Martinez, 566
U. S., at ___ (slip op., at 6–7). See generally
Preiser
v.
Rodriguez,
411 U.S.
475, 484–485 (1973). In general, if a convicted state criminal
defendant can show a federal habeas court that his conviction rests
upon a violation of the Federal Constitution, he may well obtain a
writ of habeas corpus that requires a new trial, a new sentence, or
release.
We similarly recognized the importance of
federal ha- beas corpus principles designed to prevent federal
courts from interfering with a State’s application of its own
firmly established, consistently followed, constitutionally proper
procedural rules.
Martinez,
supra, at ___ (slip op.,
at 6–7). Those principles have long made clear that a conviction
that rests upon a defendant’s state law “procedural default” (for
example, the defendant’s failure to raise a claim of error at the
time or in the place that state law requires), normally rests upon
“an independent and adequate state ground.”
Coleman, 501
U. S., at 729–730. And where a conviction rests upon such a
ground, a fed- eral habeas court normally cannot consider the
defendant’s federal constitutional claim.
Ibid.; see
Martinez, 566 U. S.
, at ___ (slip op., at
6–7).
At the same time, we pointed out that “[t]he
doctrine barring procedurally defaulted claims from being heard is
not without exceptions. A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and prejudice from
a violation of federal law.”
Id., at ___ (slip op., at 6–7).
And we turned to the issue directly before the Court: whether
Martinez had shown “cause” to excuse his state procedural failing.
Id., at ___ (slip op., at 15).
Martinez argued that his lawyer should have
raised, but did not raise, his claim of ineffective assistance of
trial counsel during state collateral review proceedings.
Id., at ___ (slip op., at 4). He added that this failure,
itself amounting to ineffective assistance, was the “cause” of, and
ought to excuse, his procedural default.
Id., at ___ (slip
op., at 4). But this Court had previously held that “[n]egligence
on the part of a prisoner’s
postconviction attorney does
not qualify as ‘cause,’ ” primarily because a
“principal” such as the prisoner, “bears the risk of negligent
conduct on the part of his agent,” the attorney.
Maples v.
Thomas, 565 U. S. ___, ___ (2012) (slip op., at 12)
(quoting
Coleman,
supra, at 753–754; emphasis added).
Martinez, in effect, argued for an exception to
Coleman’s
broad statement of the law.
We ultimately held that a “narrow exception”
should “modify the unqualified statement in
Coleman that an
attorney’s ignorance or inadvertence in a postconviction proceeding
does not qualify as cause to excuse a proce- dural default.”
Martinez, 566 U. S.
, at ___ (slip op., at 6). We
did so for three reasons. First, the “right to the effective
assistance of counsel at trial is a bedrock principle in our
justice system. . . . Indeed, the right to counsel
is the foundation for our adversary system.”
Id., at ___
(slip op., at 9).
Second, ineffective assistance of counsel on
direct appellate review could amount to “cause,” excusing a
defendant’s failure to raise (and thus procedurally defaulting) a
constitutional claim.
Id., at ___ (slip op., at 8). But
States often have good reasons for initially reviewing claims of
ineffective assistance of trial counsel during state collateral
proceedings rather than on direct appellate review.
Id., at
___ (slip op., at 9–10). That is because review of such a claim
normally requires a different attorney, because it often “depend[s]
on evidence outside the trial record,” and because efforts to
expand the record on direct appeal may run afoul of “[a]bbreviated
deadlines,” depriving the new attorney of “adequate time
. . . to investigate the ineffective-assistance claim.”
Id., at ___ (slip op., at 10).
Third, where the State consequently channels
initial review of this constitutional claim to collateral
proceedings, a lawyer’s failure to raise an
ineffective-assistance-of-trial-counsel claim during initial-review
collateral proceedings, could (were
Coleman read broadly)
deprive a defendant of any review of that claim at all.
Martinez,
supra, at ___ (slip op., at 7).
We consequently read
Coleman as
containing an exception, allowing a federal habeas court to find
“cause,” thereby excusing a defendant’s procedural default, where
(1) the claim of “ineffective assistance of trial counsel” was a
“substantial” claim; (2) the “cause” consisted of there being “no
counsel” or only “ineffective” counsel during the state collateral
review proceeding; (3) the state collateral review proceeding was
the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4) state law
requires that an “ineffective assistance of trial counsel
[claim] . . . be raised in an initial-review collateral
proceeding.”
Martinez,
supra, at ___ (slip op., at
11, 15).
B
Here state law differs from that in
Martinez in respect to the fourth requirement. Unlike
Arizona, Texas does not expressly
require the defendant to
raise a claim of ineffective assistance of trial counsel in an
initial
collateral review proceeding. Rather Texas law on
its face appears to permit (but not require) the defendant to raise
the claim on
direct appeal. Does this difference matter?
1
Two characteristics of the relevant Texas
procedures lead us to conclude that it should
not make a
difference in respect to the application of
Martinez. First,
Texas procedure makes it “virtually impossible for appellate
counsel to adequately present an ineffective assistance [of trial
counsel] claim” on direct review.
Robinson, 16 S. W.
3d, at 810–811. As the Texas Court of Criminal Appeals itself has
pointed out, “the inherent nature of most ineffective assistance”
of trial counsel “claims” means that the trial court record will
often fail to “contai[n] the information necessary to substantiate”
the claim.
Ex parte Torres,
943 S.W.2d 469, 475 (1997) (en banc).
As the Court of Criminal Appeals has also noted,
a convicted defendant may make a motion in the trial court for a
new trial in order to develop the record on appeal. See
Reyes v.
State,
849 S.W.2d 812, 816 (1993). And, in principle, the trial court
could, in connection with that motion, allow the defendant
some additional time to de- velop a further record.
Ibid. But that motion-for-new-trial “vehicle is often
inadequate because of time constraints and because the trial record
has generally not been transcribed at this point.”
Torres,
supra, at 475. See Tex. Rule App. Proc. 21.4 (2013) (motion
for a new trial must be made within 30 days of sentencing); Rules
21.8(a), (c) (trial court must dispose of motion within 75 days of
sentencing); Rules 35.2(b), 35.3(c) (transcript must be prepared
within 120 days of sentencing where a motion for a new trial is
filed and this deadline may be extended). Thus, as the Court of
Criminal Appeals has concluded, in Texas “a writ of habeas corpus”
issued in state collateral proceedings ordinarily “is essential to
gathering the facts necessary to . . . evaluate
. . . [ineffective-assistance-of-trial-counsel] claims.”
Torres,
supra, at 475. See
Robinson,
supra, at 810–811 (noting that there is “not generally a
realistic opportunity to adequately develop the record for appeal
in post-trial motions” and that “[t]he time requirements for filing
and presenting a motion for new trial would have made it virtually
impossible for appellate counsel to adequately present an
ineffective assistance claim to the trial court”).
See also
Thompson v.
State,
9 S.W.3d 808, 813–814, and n. 6 (Tex. Crim. App. 1999) (“[I]n
the vast majority of cases, the undeveloped record on direct appeal
will be insufficient for an appellant to satisfy the dual prongs of
Strickland”; only “[r]arely will a reviewing court be
provided the opportunity to make its determination on direct appeal
with a record capable of providing a fair evaluation of the merits
of the claim . . .”);
Goodspeed v.
State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (similar);
Andrews v.
State,
159 S.W.3d 98, 102–103 (Tex. Crim. App. 2005) (similar);
Ex
parte Brown,
158 S.W.3d 449, 453 (Tex. Crim. App. 2005) (
per curiam)
(similar);
Jackson v.
State,
973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (
per curiam)
(similar). See also 42 G. Dix & J. Schmolesky, Texas Practice
Series §29:76, pp. 844–845 (3d ed. 2011) (hereinafter Texas
Practice) (explaining that “[o]ften” the requirement that a claim
of ineffective assistance of trial counsel be supported by a record
containing direct evidence of why counsel acted as he did “will
require that the claim . . . be raised in postconviction
habeas proceedings where a full record on the matter can be
raised”).
This opinion considers whether, as a systematic
matter, Texas affords meaningful review of a claim of ineffective
assistance of trial counsel. The present capital case illustrates
why it does not. The trial court appointed new counsel for Trevino
eight days after sentencing. Counsel thus had 22 days to decide
whether, and on what grounds, to make a motion for a new trial. She
then
may have had an additional 45 days to provide support
for the motion but
without the help of a transcript (which
did not become available until much later—seven months after the
trial). It would have been difficult, perhaps impossible, within
that time frame to investigate Trevino’s background, de- termine
whether trial counsel had adequately done so, and then develop
evidence about additional mitigating background circumstances. See
Reyes,
supra, at 816 (“[M]otions for new trial [must]
be supported by affidavit . . . specifically showing the
truth of the grounds of attack”).
Second, were
Martinez not to apply, the
Texas procedural system would create significant unfairness. That
is because Texas courts in effect have directed defendants to raise
claims of ineffective assistance of trial counsel on collateral,
rather than on direct, review. As noted, they have explained why
direct review proceedings are likely inadequate. See
supra,
at 8–10. They have held that failure to raise the claim on direct
review does not bar the defendant from raising the claim in
collateral proceedings. See,
e.g., Robinson, 16 S. W.
3d, at 813;
Ex parte Duffy,
607 S.W.2d 507, 512–513 (Tex. Crim. App. 1980) (overruled on
other grounds by
Hernandez v.
State,
988 S.W.2d 770 (Tex. Crim. App. 1999)). They have held that the
defendant’s decision to raise the claim on direct review does not
bar the defendant from also raising the claim in collateral
proceedings. See,
e.g.,
Lopez v.
State, 343
S.W.3d 137, 143 (Tex. Crim. App. 2011);
Torres,
supra, at 475. They have suggested that appellate counsel’s
failure to raise the claim on direct review does not constitute
“ineffective assistance of counsel.” See
Sprouse v.
State, No. AP–74933, 2007 WL 283152, *7 (Tex. Crim. App.,
Jan. 31, 2007) (unpublished)
. And Texas’ highest criminal
court has explicitly stated that “[a]s a general rule” the de-
fendant “should
not raise an issue of ineffective assistance
of counsel on direct appeal,” but rather in collateral re- view
proceedings.
Mata v.
State,
226 S.W.3d 425, 430, n. 14 (2007) (internal quotation
marks omitted). See
Rob- inson,
supra, at 810 (“[A]
post-conviction writ proceeding, rather than a motion for new
trial, is the preferred method for gathering the facts necessary to
substantiate” an ineffective-assistance-of-trial-counsel
claim).
The criminal bar, not surprisingly, has taken
this strong judicial advice seriously. See Guidelines and Standards
for Texas Capital Counsel, 69 Tex. B. J. 966, 977, Guideline
12.2(B)(1)(d) (2006) (“[S]tate habeas corpus is the first
opportunity for a capital client to raise challenges to the
effectiveness of trial or direct appeal counsel”). Texas now can
point to only a comparatively small number of cases in which a
defendant has used the motion-for-a-new-trial mechanism to expand
the record on appeal and then received a hearing on his
ineffective-assistance-of-trial-counsel claim on direct appeal.
Brief for Respondent 35–36, and n. 6 (citing,
inter alia,
State v.
Morales, 253 S.W.3d 686, 689–691 (Tex. Crim.
App. 2008);
Robertson v.
State,
187 S.W.3d 475, 480–481 (Tex. Crim. App. 2006)). And, of those,
precisely one case involves trial counsel’s investigative failures
of the kind at issue here. See
Armstrong v.
State,
No. AP–75706, 2010 WL 359020 (Tex. Crim. App., Jan. 27, 2010)
(unpublished)
. How could federal law deny defendants the
benefit of
Martinez solely because of the existence of a
theoretically available pro- cedural alternative, namely direct
appellate review, that Texas procedures render so difficult, and in
the typical case all but impossible, to use successfully, and which
Texas courts so strongly discourage defendants from using?
Respondent argues that Texas courts enforce the
relevant time limits more flexibly than we have suggested.
Sometimes, for example, an appellate court can abate an appeal and
remand the case for further record development in the trial court.
See
Cooks v.
State,
240 S.W.3d 906 (Tex. Crim. App. 2007). But the procedural
possibilities to which Texas now points seem special, limited in
their application, and, as far as we can tell, rarely used. See 43A
Texas Practice §50:15, at 636–639; 43B
id., §56:235, at
607–609.
Cooks, for example, the case upon which respondent
principally relies, involved a remand for further record
development, but in circumstances where the lower court wrongly
failed to give a defendant new counsel in time to make an ordinary
new trial motion. 240 S. W. 3d
, at 911. We do not
believe that this, or other, special, rarely used procedural
possibilities can overcome the Texas courts’ own well-supported
determination that collateral review normally constitutes the
preferred—and indeed as a practical matter, the only—method for
raising an ineffective-assistance-of-trial-counsel claim.
Respondent further argues that there is no
equitable problem to be solved in Texas because if counsel fails to
bring a substantial claim of ineffective assistance of trial
counsel
on direct appeal, the ineffectiveness of
appellate counsel may constitute cause to excuse the
procedural default. See
Murray v.
Carrier,
477 U.S.
478 (1986). But respondent points to no case in which such a
failure by appellate counsel has been deemed constitutionally
ineffective. And that lack of authority is not surprising given the
fact that the Texas Court of Criminal Appeals has directed
defendants to bring such claims on collateral review.
2
For the reasons just stated, we believe that
the Texas procedural system—as a matter of its structure, design,
and operation—does not offer most defendants a meaningful
opportunity to present a claim of ineffective assistance of trial
counsel on direct appeal. What the Arizona law prohibited by
explicit terms, Texas law precludes as a matter of course. And,
that being so, we can find no significant difference between this
case and
Martinez. The very factors that led this Court to
create a narrow exception to
Coleman in
Martinez
similarly argue for the application of that exception here.
The right involved—adequate assistance of
counsel at trial—is similarly and critically important. In both
instances practical considerations, such as the need for a new
lawyer, the need to expand the trial court record, and the need for
sufficient time to develop the claim, argue strongly for initial
consideration of the claim during collateral, rather than on
direct, review. See
Martinez, 566 U. S., at ___ (slip
op., at 10); see also
Massaro v.
United States,
538 U.S.
500, 505 (2003). In both instances failure to consider a
lawyer’s “ineffectiveness” during an initial-review collateral
proceeding as a potential “cause” for excusing a procedural default
will deprive the defendant of any opportunity at all for review of
an ineffective-assistance-of-trial-counsel claim. See
Martinez,
supra, at ___ (slip op., at 7).
Thus, for present purposes, a distinction
between (1) a State that denies permission to raise the claim on
direct appeal and (2) a State that in theory grants permission but,
as a matter of procedural design and systemic operation, denies a
meaningful opportunity to do so is a distinction without a
difference. In saying this, we do not (any more than we did in
Martinez) seek to encourage States to tailor direct appeals
so that they provide a fuller op- portunity to raise
ineffective-assistance-of-trial-counsel claims. That is a matter
for the States to decide. And, as we have said, there are often
good reasons for hearing the claim initially during collateral
proceedings.
III
For these reasons, we conclude that where, as
here, state procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal, our
holding in
Martinez applies:
“[A] procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 566 U. S.
, at ___ (slip
op., at 15).
Given this holding, Texas submits that its
courts should be permitted, in the first instance, to decide the
merits of Trevino’s ineffective-assistance-of-trial-counsel claim.
Brief for Respondent 58–60. We leave that matter to be determined
on remand. Likewise, we do not decide here whether Trevino’s claim
of ineffective assistance of trial counsel is substantial or
whether Trevino’s initial state habeas attorney was
ineffective.
For these reasons we vacate the Fifth Circuit’s
judgment and remand the case for further proceedings consistent
with this opinion.
It is so ordered.