Failure to Extend a Precedent Versus Failure to Apply It: A Comment on Shinn v. Martinez Ramirez
by Michael C. Dorf
I have very little to add to the excellent analysis set forth in the dissent of Justice Sotomayor (joined by Justices Breyer and Kagan) from Monday's SCOTUS decision in Shinn v. Martinez Ramirez. The case does, however, provide an opportunity to make a broader point about a tactic of the Roberts Court (and of other Courts before it) that can be as threatening to existing law as frank overruling: the characterization of a straightforward application of current law as calling for an "extension" that the Court declines to make. After summarizing Martinez Ramirez as briefly as possible, I'll note some other instances of the practice.
A person in state custody may challenge his conviction or sentence by bringing a habeas corpus petition in federal court, but a combination of judge-made and statutory obstacles renders it extremely difficult for anyone--including people whose trials or sentencing hearings were constitutionally defective and some who are in fact innocent--to obtain a habeas writ. One of the obstacles is procedural default. If a habeas petitioner brings an issue to the federal court but either failed to present it at all or failed to comply with some state procedure when presenting it in state court, the federal habeas court will not grant relief unless the petitioner can show "actual innocence" (to a standard of proof that is very difficult to meet) or that there was good "cause" for the procedural default and that the petitioner suffered "prejudice" (meaning a fair likelihood that a different outcome would have occurred had the issue been properly presented).
One of the most common grounds for seeking habeas is a claim that the petitioner received ineffective assistance of counsel (IAC) at trial or sentencing in violation of the Sixth Amendment right to counsel. In some states, the first opportunity to effectively raise an IAC claim is during state habeas rather than on the immediate appeal. That makes good sense because defendants often have the same lawyer on appeal as at trial and sentencing; few lawyers will claim on appeal that they themselves were incompetent; so a new lawyer makes the claim on state habeas. But here's the rub: there's no constitutional right to counsel on state habeas. So if a petitioner's trial/sentencing lawyer is ineffective, the IAC claim might be lost by an ineffective state habeas lawyer.
Recognizing the unfairness of this Catch-22, the Supreme Court held in Martinez v. Ryan that where state habeas is the first opportunity to raise a trial IAC claim, ineffective assistance of state habeas counsel is "cause" for excusing the default. In Trevino v. Thaler the Court held that the Martinez rule also applies where a state allows a petitioner to raise a trial-level IAC claim on direct appeal but makes it exceedingly difficult to do so, so that state habeas is the first realistic opportunity for raising the IAC claim.
Post Martinez and Trevino, state habeas IAC can be cause for excusing the default. What about prejudice? To show prejudice, and to make an effective showing of the trial or sentencing IAC itself, a petitioner needs to show that if he had received competent counsel that would have made a difference. Typically that means--and in the two cases that were consolidated in Martinez Ramirez it meant--demonstrating what a competent pre-trial or pre-sentencing investigation would have yielded. And because the ineffective lawyers at trial/sentencing and state habeas did not do that (or left other sorts of stones unturned), the record from the state proceedings will not suffice to show prejudice or make out the full IAC showing. Accordingly, one would think that implicit in the Martinez/Trevino rule is the authority of a federal district court entertaining a habeas petition to hold an evidentiary hearing to learn what evidence would have been introduced by competent counsel.
But wait. A provision of the federal habeas law says this: "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" one of two narrow exceptions is satisfied. In the case of neither petitioner in Martinez Ramirez were the exceptions applicable. Well, so what? Where the reason the record does not include the support needed for the petitioner (i.e., the "applicant") to make his case is that he had ineffective state habeas counsel, "the applicant" hasn't "failed to develop the factual basis of" the claim; the applicant's ineffective lawyer was the one who failed to develop it. That rather straightforward parsing of the statutory language seems to follow inevitably from Martinez and Trevino.
Not so, said six Justices in Martinez Ramirez. According to the majority opinion of Justice Thomas (who dissented in both Martinez and Trevino), the statutory language controls. Pointing to other contexts in which the Court had narrowly construed the circumstances in which an evidentiary hearing can be held, the Court rejected what it called the argument of the habeas petitioners (who were respondents in the Supreme Court) for "extending Martinez so that ineffective assistance of postconviction counsel can excuse a prisoner’s failure to develop the state-court record under" the statutory provision I quoted in the prior paragraph.
As I said above, Justice Sotomayor's dissent more than adequately explains the absurdity of this procedure by which a petitioner's default of the IAC claim is excused due to the incompetence of his state habeas counsel, but he's then unable to develop the facts to prove the IAC claim because the same incompetent lawyer's failure to do so in state court is now the responsibility of the petitioner. Here I want to note the disingenuousness of the Court's characterization of the habeas petitioners' argument as seeking extension of Martinez and Trevino rather than simply their application.
Suppose Peter encounters an unforeseen obstacle to making his monthly mortgage payment to the bank by the first of the month. Let's say that a computer virus infects his employer's payroll software, delaying salary payments that month. Peter is illiquid at the moment so he calls the bank, explains the situation, and asks if the bank will forbear on invoking the penalty clause if, this one time, he pays a week late, by which time he will have received his paycheck. A representative of the bank says "yes, as long as you make your payment by the 10th of next month, we will excuse your lateness." Peter gets paid the morning of the 10th and logs onto the bank app to make his mortgage payment. The app does not accept payment, due to the lateness. Peter goes to the bank in person and seeks to make his mortgage payment. No one at the bank allows him to do so unless he also pays the substantial penalty for lateness. Peter escalates up to the high-ranking bank official who gave him until the 10th in the first place. The official says: "Well, I told you we would excuse the default if you made the payment by the 10th. I didn't say we would accept late payment."
Surely everyone would agree that the bank official is being unreasonable. And it would be just as unreasonable if the bank official now told Peter that he's asking for an "extension" of the original promise of forbearance to also include a promise of accepting payment. That's not an extension at all. It's simply an obvious entailment of the original promise. The same is true in Martinez Ramirez.
And yet we see this kind of characterization from courts in various contexts. In the Roberts Court, a prime example concerns so-called Bivens actions. The federal civil rights statute (42 USC Section 1983) enacted during Reconstruction authorizes lawsuits against state and local officers but no parallel provision authorizes suits against federal officers (like FBI or DEA agents) who violate civil rights. To fill the gap, the Court fashioned a common-law damages action in the Bivens case in 1971. For a time, it was generally understood that Bivens was simply the common-law federal analogue to Section 1983 and the two were seen as essentially coextensive. But in recent years, the Court has drastically cut back on Bivens. In discussing an oral argument a little under three months ago, I described the lengths to which the Court has gone to seize on minor distinctions in order to decline to "extend" Bivens to what a majority deems a new context. I noted there how the Court uses the same maneuver to grant qualified immunity to officers sued for civil rights violations and to deny relief to habeas petitioners (under yet another procedural obstacle--the prohibition on reliance on so-called "new rules").
The foregoing examples have a conservative valence, but liberal Justices and judges also sometimes characterize their refusal to apply the principles announced in precedents with which they disagree as merely failing to extend those precedents. Some of the dissents in the Court's state sovereign immunity context have this quality. The Court's 1890 ruling in Hans v. Louisiana that state sovereign immunity applies in federal question cases and even when a state is sued by one of its own citizens essentially divorced the doctrine from the text and history of the Eleventh Amendment; that's a reason to think Hans should be overruled; but some of the dissents over the last several decades purported to follow Hans while merely choosing not to extend it. I don't think those dissents are as difficult to justify as what the majority did in Martinez Ramirez, but they have the same basic flavor.
Suppose you think Case A was rightly decided. Ideally the Court would apply and even extend A's reach, but if a majority of the Court comes to think that A was mistaken, would you prefer that they frankly overrule it or pretend that they're simply failing to extend it in case after case? In some respects, the failure-to-extend move is not quite as bad. It leaves open the possibility that lower courts will honestly apply Case A, even if the Supreme Court won't, and as my long-ago boss Judge Stephen Reinhardt of the Ninth Circuit used to say, "they can't reverse 'em all."
But in other respects, the failure-to-extend characterization is worse than frank overruling, which does have the virtue of honesty. So long as Case A remains on the books, the law will be in a state of confusion, because lawyers and clients will never be quite sure what will fall within the small core of Case A that is preserved.
In the current context, I guess for now I'm not hoping that the Court frankly overrules Martinez and Trevino. There are some settings in which trial or sentencing counsel's ineffectiveness will be apparent even on the state court record, so that a federal habeas petitioner who was denied effective counsel can prevail even without an evidentiary hearing. However, it would not surprise me if the bar to those sorts of claims is set so high as to effectively render Martinez and Trevino dead letters. Other things being equal, a passive aggressive Court is not quite as bad as an aggressive aggressive Court. But at some point there's no real difference.