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HABEAS CORPUS Does a Claim of Ineffective Assistance of Counsel at Trial and on Habeas Review Provide Cause for Procedural

Default? CASE AT A GLANCE


Convicted of capital murder for the gang rape and murder of a 15-year-old girl, Carlos Trevino was sentenced to death by a Texas jury. After unsuccessfully pursuing state court remedies, he sought a writ of habeas corpus in federal district court. In federal court, Trevino maintained his trial counsel was ineffective in failing to present additional mitigating evidence, and state habeas counsel was ineffective in failing to raise this complaint in his first state habeas petition. Both the federal district court and the Fifth Circuit denied Trevinos federal habeas petition. Subsequently, the Court handed down its decision in Martinez v. Ryan, holding an Arizona inmates failure to raise a claim of ineffective assistance of counsel in his first state habeas petition may be excused because in Arizona inmates are barred from asserting ineffective assistance of counsel on direct appeal, and Arizona does not provide counsel during habeas proceedings.

Trevino v. Thaler Docket No. 11-10189 Argument Date: February 25, 2013 From: The Fifth Circuit
by Rachel K. Paulose Miami, FL

ISSUE
Should the Court extend Martinez to states that do not require prisoners to raise all ineffective assistance of counsel claims in state habeas proceedings?

FACTS
On May 9, 1996, Carlos Trevino was released from prison on parole. One month later, on June 9, 1996, Trevino and four other men left a party where they had been drinking beer and smoking marijuana to buy more alcohol at a convenience store. Trevinos minor cousin, Juan Gonzales, was among the group. The men convinced Linda Salinas, a 15-year-old girl they met at the convenience store, to get into their car by promising her a ride to a nearby fast-food restaurant where friends awaited her. Instead, the men took Salinas to a secluded park where they vaginally, anally, and orally raped her before cutting her carotid artery. Salinas bled to death. At trial, the prosecution introduced forensic evidence placing Trevino at the scene of the crime. Trevinos blood and fibers from his pants were found in Salinass underwear, and fibers from Trevinos pants were found in Salinass shorts. Gonzales testified Trevino had participated in the gang rape, was covered in blood after Salinass murder, and made incriminating statements about the murder. On July 1, 1997, a jury convicted Trevino of capital murder. During the punishment phase of the trial, the prosecution presented evidence of Trevinos extensive criminal record and membership in the

violent prison gang La Hermidad y Pistoleros Latinos. The defense offered Trevinos aunt, who testified Trevinos mother was an alcoholic, Trevinos father was uninvolved in his life, Trevinos family was often impoverished, and Trevino dropped out of school. On July 3, 1997, the jury determined beyond a reasonable doubt Trevino was a continuing threat to society; Trevino caused the death of Salinas, or alternatively intended to kill her, or anticipated her murder; and insufficient mitigating circumstances existed. Accordingly, the state trial court imposed the death sentence upon Trevino. Trevino brought an unsuccessful motion for a new trial. Next, Trevino appealed his conviction and sentence, asserting 19 grounds for relief. On May 12, 1999, the Texas Court of Criminal Appeals affirmed both Trevinos conviction and sentence. On April 19, 1999, Trevino filed a state habeas corpus application, asserting 46 claims for relief, including ineffective assistance of trial counsel on various grounds. This motion came after an evidentiary hearing during which Trevinos new state habeas counsel cross-examined Trevinos trial attorney regarding his investigation, representation, and strategy. On April 4, 2001, the Texas Court of Criminal Appeals denied Trevinos habeas application. On March 14, 2002, Trevino filed his first federal habeas petition, naming four claims for relief. Trevino then filed a stay to return to state court to explore further claims, which the federal court granted.

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On August 15, 2004, Trevino filed his second state habeas corpus application. Among other grounds, Trevino alleged for the first time his trial counsel performed ineffectively by failing to present additional mitigating evidence during the penalty phase of his trial. Because Trevino had not presented this specific ground in his first state petition, the Texas Court of Criminal Appeals dismissed Trevinos application as an abuse of the writ. On December 8, 2008, Trevino filed an amended federal habeas petition, claiming eight grounds for relief. Trevino complained trial counsel should have introduced additional mitigating evidence regarding his alcoholic mother, disadvantaged upbringing, poor performance in school, impaired cognitive abilities, and alleged fetal alcohol syndrome due to his mothers alcohol addiction. On December 21, 2009, the federal district court rejected all Trevinos claims. The court ruled federal habeas review of Trevinos ineffective assistance of counsel claim was procedurally barred, since Trevino failed to present the claim in his first state habeas petition. Moreover, the court found no exceptions to default applicable because Trevino pointed to no facts demonstrating actual innocence. Further, the federal district court found Trevinos additional mitigating evidence was cumulative, double-edged, and demonstrated such an unwillingness to conform his behavior to societal norms, it would likely have solidified the jurys affirmative answer to the first capital sentencing special issue, i.e., the future dangerousness special issue. The court also held the factual and legal bases for these complaints were available to petitioner at the time he filed and litigated his first state habeas corpus proceeding. Nevertheless, the court granted a certificate of appealability on three of Trevinos claims, including his claim of ineffective assistance of trial counsel, stating: Reasonable minds could disagree over whether petitioner has satisfied the fundamental miscarriage of justice exception to the procedural default doctrine with regard to his complaint that his trial counsel rendered ineffective assistance at the punishment phase of trial by failing to (1) adequately investigate petitioners background and (2) discover, develop, and present available mitigating evidence. On January 25, 2010, the federal district court denied Trevinos motion to alter or amend its judgment. On November 14, 2011, the United States Court of Appeals for the Fifth Circuit affirmed the federal district courts denial of federal habeas relief in Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012). In considering whether Trevinos claims demonstrated a fundamental miscarriage of justice under Coleman v. Thompson, 501 U.S. 722 (1991), the appellate court held Trevino failed to present a colorable showing of actual innocence to overcome the procedural default in his first habeas petition. Like the district court, the Fifth Circuit agreed Trevinos new mitigating evidence was cumulative as well as double-edged as the evidence could just as easily be interpreted to support the conclusion that Trevino represents a future danger. The court noted in particular the evidence of Trevinos statements during the night of the rape and murder asserting, I learned how to use a knife in prison, and I learned how to kill in prison; his past convictions for various crimes, including unlawful possession of a handgun; and his membership in a notorious street gang.
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Meanwhile, on March 20, 2012, the Supreme Court handed down its decision in Martinez v. Ryan, 131 S. Ct. 2960 (2011). The Court in Martinez ruled because Arizona required an inmate to first raise an ineffective assistance of trial counsel claim on state habeas review, no procedural default would bar a federal habeas court from hearing an otherwise procedurally defaulted claim where there was no state habeas counsel provided or such counsel was ineffective. The Court emphasized its ruling was based on its equitable powers, not rooted in any constitutional right to counsel on habeas review. Just as in Coleman, the Court again declined to declare a constitutional right to effective counsel in initial review collateral proceedings. On April 30, 2012, Trevino filed a petition for certiorari. On October 29, 2012, the United States Supreme Court granted certiorari to determine whether it should vacate the Fifth Circuits opinion and remand for reconsideration of Trevinos claims under Martinez v. Ryan.

CASE ANALYSIS
The Supreme Courts equitable ruling in Martinez opened the door to excuse procedural default of a claim of ineffective assistance of trial counsel in a state that bars a petitioner from raising an ineffectiveness claim on direct appeal. Trevino does not claim a constitutional right to effective habeas counsel. Thus, his appeal hinges on whether the Court finds the Texas state habeas procedure mirrors the Arizona habeas procedure the Court deemed inequitable in Martinez. Does Texas Law Force Prisoners to Raise Ineffective Assistance of Counsel Claims Only in State Collateral Proceedings? Trevino asserts Texas, like Arizona, channels review of ineffectiveness of counsel claims to state habeas corpus applications. In support of this claim, Trevino cites the practices of the Texas courts, including the Texas Court of Criminal Appeals in Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) where that court noted, As a general rule, a defendant should not raise an issue of ineffective assistance of counsel on direct appeal. However, in Mata itself Texas courts considered and rejected a claim of ineffective assistance of counsel on direct appeal. Trevino does not describe this purported channeling practice in Texas as a rule, but rather as a policy in the vast majority of cases, although he does not state in which cases this policy does not apply. In response, Texas vigorously denies any statute, rule, or practice requires inmates to defer ineffective assistance of counsel claims to state habeas proceedings. Texas describes Trevinos description of the Texas capital process as a fantasy. Indeed, Texas argues both direct appeals and new trial motions provide prisoners their first opportunity to raise ineffective assistance of trial counsel claims. Texas agrees if a state chooses the Arizona bright line model, such a state cannot force its prisoners to raise ineffectiveness claims in a forum where they lack the right to an adequate attorney, and then turn around and invoke the procedural default doctrine to insulate the results of that uncounseled proceeding. But, Texas is no Arizona, says the state. Texas details and defends its death penalty review process, describing it as a model in the Nation. Texas points out the state pays for new, conflict-free appellate and habeas counsel, investigators, and experts whenever a death sentence is imposed.

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Does Texas Law Allow Prisoners to Raise Ineffective Assistance Claims in Other Fora? Direct Appeal Even if ineffectiveness claims are permissible on direct appeal, Trevino claims they cannot be, well, effective. Trevino claims the record on direct appeal simply will be insufficiently developed to review evidence of trial counsels tactical decisions on direct appeal. Thus, the state postconviction proceeding is the preferred method for raising claims on ineffective assistance of counsel. Trevino cites various cases in which Texas courts on direct appeal have dismissed without prejudice a petitioners claims of ineffective assistance of counsel. Trevino also claims he has found no case where a prisoner on death row has successfully brought an ineffective assistance of counsel claim on direct appeal. Thus, according to Trevino, waiting until habeas review to challenge trial counsel effectiveness is a reflection of prevailing professional norms. Texas rebuts this claim by pointing to the plethora of cases in which prisoners have raised and won ineffective assistance of trial claims on direct appeal. Texas thus distinguishes its discretionary policy, which allows petitioners to raise ineffectiveness claims on direct appeal, from Arizonas mandatory policy, which altogether barred ineffectiveness claims on direct appeal. This distinction is critical, says Texas, and knocks Texas out of the Martinez box. Texas argues it stands outside the narrow exception the Court carved for Arizona in Martinez because unlike Arizona, it does not force ineffectiveness claims to be litigated in procedures where counsel is not guaranteed. Texas concludes it is therefore indisputable that state habeas is not the only mechanism for developing an ineffectiveness claim. New Trial Motion Trevino next attacks the appellate ruling directly, rejecting Thalers distinction between Arizonas mandatory system and Texass discretionary system. In particular, Trevino complains Texass discretionary system still may require petitioners to raise their ineffectiveness claims via motions for new trials. Citing procedural deadlines, Trevino complains a full record may not be developed within the 30 days allotted to bring a new trial motion. Trevino also suggests new appellate counsel may not have been appointed within this time frame, trial transcripts may still be in progress, and investigations may be incomplete. Essentially, Trevino acknowledges that exceptions not permissible in the Arizona system do in fact exist in Texas, but argues the system may move too slowly to make the exceptions accessible. Trevino claims rare exceptions should not prevent the Court from applying Martinez to Texas cases. Texas retorts it does in fact grant petitioners the right to bring new trial motions based on ineffective assistance of counsel claims. Indeed, in this very case, Trevinos counsel brought a new trial motion, alleging ineffective assistance of trial. Texas comprehensively details a long list of other cases in which its courts have entertained motions for new trials based on claims of ineffective assistance of counsel. Texas also notes such a motion may be accompanied by a request for an evidentiary hearing and the introduction of other evidence not already in the record, including an examination of trial counsels strategies.

Does Texas Policy Require Petitioners to Channel Ineffectiveness Claims to Collateral Proceedings? Trevino makes a policy argument that in Texas, state habeas counsel is better equipped than appellate counsel to raise an ineffectiveness claim. Citing Texas law, Trevino documents habeas counsels general responsibility to investigate expeditiously, before and after the appellate record is filed in the court of criminal appeals, the factual and legal grounds for the filing of an application for a writ of habeas corpus. Trevino notes Texas law makes special funding available for fact development to state habeas counsel. Since 1999, Texas has provided up to $25,000 per habeas application to reimburse habeas investigation expenses in death penalty cases. Texas denies there is anything special about the funding provided to state habeas counsel and points out the state also grants funding for investigation and expert testimony to direct appeal counsel. Trevinos cited authorities do not require (or even recommend) that state habeas counsel raise any particular claim, much less do they prohibit direct appeal counsel from doing anything, asserts Texas. Next, Trevino cites current state bar guidelines, which also direct habeas counsel to assess ineffectiveness of trial and appellate counsel. The guidelines opine because state habeas corpus is the first opportunity for a capital client to raise challenges to the effectiveness of trial or direct appeal counsel, state habeas corpus counsel should not accept the appointment if he or she represented the client at the capital murder trial or on direct appeal of the capital conviction and death sentence. Texas responds these discretionary bar guidelines were not in place when Trevinos direct appeal and state habeas application were moving through the Texas courts and are therefore inapplicable to his case. Texas states the only applicable and contemporaneous bar guidelines were issued by the American Bar Association and prescribed similar roles for appellate and habeas counsel. Can Trevino Show Cause? Martinez requires a meritorious claim. Texas agrees under Supreme Court precedent, Trevinos procedural default could have been excused were he actually innocent, or where some objective factor external to the defense caused his default, and actual and substantial prejudice resulted. Neither exception applies here, says the state. Trevino disagrees, claiming he can show cause for his procedural default and prejudice as a result. Did Trevinos Counsel Conduct a Reasonable Mitigation Investigation? Trevino claims he may also establish cause to excuse his procedural default because his claim is substantial. Trevino argues his trial counsel conducted no reasonable mitigation investigation whatsoever. According to Trevino, this was an external factor that caused actual prejudice to him. In particular, Trevino claims his trial lawyer failed to discover a wealth of mitigating evidence, including Trevinos abusive upbringing, fetal alcohol syndrome, and the lasting psychological effects of his traumatic childhood. Trevino also claims his state habeas counsel conducted no investigation of his life history to uncover possible mitigating evidence.

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Texas contests this argument as a matter of fact. Texas defends the actions of Trevinos state trial, appellate, and habeas attorneys, noting their long and distinguished careers, including in death penalty defense work. Moreover, Texas notes months before trial, Trevinos attorneys were already mounting a mitigation defense to block the death penalty. Trevinos trial counsel tried to reach Trevinos alcoholic mother, but she was unreachable. Nevertheless, his trial lawyers repeatedly interviewed Trevinos aunt and stepfather, investigated Trevinos educational background, and issued over 70 mitigation discovery requests. For his part, Trevino refused to provide any leads for helpful family members. In light of this, Texas argues, trial counsel could hardly be described as having conducted no meaningful mitigation investigation. Further, Texas states, Trevino was appointed new counsel for his direct appeal just four days after the trial court imposed the death penalty. About two weeks later, appellate counsel filed a motion for new trial, including by challenging trial counsels effectiveness. However, appellate counsel never argued trial counsel was ineffective in failing to present additional mitigating evidence. And, Trevino has never challenged his appellate counsels effectiveness. Appellate counsels arguments were rejected by the appeals courts. Lastly, the state provided Trevino new state habeas counsel. After hearing the trial counsels strategic reasons for declining to present additional mitigating evidence, state habeas counsel, too, declined to label trial counsel ineffective as to his strategic choice at the penalty phase. Thus, Texas argues, the state certainly provided Trevino a meaningful opportunity to raise his ineffective assistance of trial counsel claim. According to Texas, Trevino mischaracterizes the record by asserting he had no opportunities to find or present mitigation evidence. Rather, no jury or court found such arguments compelling. To therefore force Texas into the Arizona mold would be to create a solution in search of a problem, says the state. Moreover, Texas scoffs at the notion Trevinos current mitigation argument that Trevino is a hopeless drug abuser and lifelong gang member with brain damage would have been any more effective than the strategy employed by his trial counsel of a good kid who grew up in a tough environment but nonetheless managed to be a loving uncle. Can Trevino Show Actual Innocence? Trevino simply disagrees with the district courts conclusion that there is simply no reasonable probability that the outcome of the penalty phase would have been different, had the new mitigating evidence he now cites actually been introduced. Trevino claims the new mitigating evidence bears on his own moral culpability. Trevino does not go so far as to make the same actual innocence argument that may have helped sway the Court in Martinez, in which the child victim of sexual abuse recanted her claims. However, Trevino cites evidence pointing a more accusatory finger at other defendants, suggesting, but not stating, he may have been a mere bystander. Nowhere in his brief does Trevino admit to having raped or killed Salinas, repeating a pattern the lower courts found demonstrated a lack of remorse.

Texas counters with a recitation of the full litany of evidence against Trevino, which it pointedly notes is absent from Trevinos own brief to the Court. The state notes Trevino was the only man linked to the scene of the crime through forensic evidence. Juror interviews admitted to the record showed the jury found compelling the DNA evidence against Trevino. Trevinos cousin Gonzales testified Trevino held Salinas down while she was attacked by the other men. Gonzales testified Trevino bragged about learning how to use a knife in prison and was covered in blood after the men left Salinas to die. Prosecutors also introduced evidence of Trevinos long criminal history and membership in a violent prison gang. This combination of damning evidence, says the state, demonstrates Trevino is not actually innocent.

SIGNIFICANCE
If the Court grants Trevinos petition, it potentially may open the floodgates the Antiterrorism and Effective Death Penalty Act (AEDPA) intended to shut. A decision reversing the Fifth Circuit would encourage habeas petitioners to claim ineffective assistance of counsel in excusing their failure to raise claims that would otherwise be procedurally defaulted. A perpetual ascent of ineffective assistance of counsel claims, each layered upon a prior counsels failures, could provide endless cause for review of habeas petitions. Texas warns the Court to extend Martinez would inundate state and federal courts with long ago defaulted claims. Texas also worries a reversal of the Fifth Circuit here will give future capital defense counsel incentives to sandbag state courts and then foist ineffectiveness claims onto federal habeas proceedings. Pointing out Trevino has raised and the state and federal courts have already rejected 67 claims, Texas asks the Court to employ AEDPAs relitigation bar. At least half the states concur with Texass assessment of a ruling favorable to Trevino. In a brief filed on behalf of 25 states, the Utah Attorney Generals Office argues the states, too, have an interest in the smooth functioning of their own state court processes. Boundless relitigation of state prisoners claims does not serve this interest. Forty-four states employ processes similar to those followed in Texas. Even more compelling, say the states, the victims families have interests in the finality of state court judgments. Stacked against the interests of the states and victims families are the interests of death row inmates, who certainly possess a compelling interest in preserving their own lives. This interest is strongest where prisoners claim actual innocence. The state wields no greater power against the individual than the power to terminate a human life. Should the Court view this issue very broadly, this case could have a powerful ripple effect. Justice Scalia, dissenting in Martinez, described its equitable ruling as mandating the same result as if the Court had found a constitutional right to counsel in initial review state habeas proceedings. Trevino offers the Court the opportunity to plainly declare a constitutional right to effective habeas counsel. Finally, this case comes to the court in an unusual posture. Trevino makes substantial claims about the actions of his various attorneys, Texas law, Texas procedure, and his potential innocence. The

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state of Texas forcefully contradicts Trevinos factual assertions and characterizations of the record, at times accusing Trevino of sheer fabrication. While aggressive litigation is to be expected and disagreements about interpretation of the law are the stuff of which Supreme Court arguments are made, contention regarding critical fact is unusual. The decision in this case may rest upon the credibility of counsels advocacy.

ATTORNEYS FOR THE PARTIES


For Petitioner Carlos Trevino (Warren Alan Wolf, 210.225.0055) For Respondent Rick Thaler, Director, Texas Department of Criminal Justice (Jonathan F. Mitchell, Solicitor General of Texas, 512.936.1700)

AMICUS BRIEFS
Rachel K. Paulose is a graduate of Yale Law School. She worked as an associate at Williams & Connolly LLP. She has also served extensively in government, including as a law clerk to Eighth Circuit Court of Appeals Judge James B. Loken; trial attorney in the Voting Section, Civil Rights Division of the U.S. Department of Justice; assistant U.S. attorney; and a Presidentially nominated, Senate confirmed United States attorney. She can be reached at rkpaulose@hotmail.com. PREVIEW of United States Supreme Court Cases, pages 196200. 2013 American Bar Association. In Support of Petitioner Carlos Trevino University of Texas School of Law Capital Punishment Clinic and University of Houston Law Center Death Penalty Clinic (Robert C. Owen, 512.232.9391) In Support of Respondent Rick Thaler Criminal Justice Legal Foundation (Kent S. Scheidegger, 916.446.0345) Families of Linda Salinas and Other Crime Victims (Ryan P. Bates, 512.533.0150) Utah and 24 Other States (Laura B. Dupaix, Utah Attorney Generals Office, 801.366.0533) In Support of Neither Party State Bar of Texas (Ralph Haney Brock, 806.762.5671)

In January, the Court heard a number of interesting cases. Below, we highlight some of the more engaging comments between the justices and the advocate during Maracich v. Spears (Docket No. 12-25). Maracich involved the question of whether lawyers violate the Drivers Privacy Protection Act when they obtain drivers motor vehicle records to solicit the drivers participation in litigation without obtaining the drivers express consent. MR. JOSEPH GUERRA (on behalf of petitioners): And, in fact, the legislative record here is devoid of any evidence that Congress was aware that lawyers ever made use of DMV information for solicitation, much less thator that they contemplated itmuch less that Congress made a conscious decision to allow them to JUSTICE RUTH BADER GINSBURG: Do you recognize that you could use (b)(4) to identify class members? MR. GUERRA: We do, Your Honor. Andand thatsthat is because that is not a solicitation. That class notice is advising people who are not aware that there is pending litigation that could affect their rights. JUSTICE ELENA KAGAN: Mr. Guerra, where do you get that from, in (b)(4), this focus on tribunals rather than lawyers? Becauseyou know, thethe investigation is done by lawyers, right? And thats a critical part of (b)(4), so wherewhere does that come from in the statute? MR. GUERRA: It comes from the phrase for use in connection with any civil, criminal, administrative or arbitral proceeding in any Federal, State, or local court or agency. And JUSTICE KAGAN: But then it includes things that are clearly done by lawyers. MR. GUERRA: Right. My point is that lawyers get access when they act as officers of those tribunals, not for their own commercial self-interests. And an investigation in anticipation of litigation is an obligation that all lawyers have, to ensure that they have a wellfounded factual basis for bringing a lawsuit in the first instance. JUSTICE ANTHONY KENNEDY: Well, areare you saying that the study must be either a solicitation or an investigation? It cant be both? Why cant it be both? MR. GUERRA: Because, Justice Kennedy, the DMthe DPPA is designed toit was aiming at a fundamental problem of private individuals obtaining DMV information for commercial solicitation purposes. And Congress, we know, wanted to stop that with the absence of consent. Soby the same token, they wanted to make sure that they werent intruding on the information that courts and other tribunals need to do their jobs. And so thethe distinction is you can engage in an investigation because thats acting as an officer of the court, in order to help the court ultimately render its judgment. CHIEF JUSTICE JOHN ROBERTS: Howhow is somebody conducting an investigation in anticipation of litigationit hasnt started yetacting as an officer of the court? (continued on page 204)
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