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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.