Jonah J. Horwitz

Most of the time, the lawyers who specialize in representing habeas petitioners in federal court are treated as curiosities by the rest of the criminal defense bar.  That is for good reason, as habeas law is complex, convoluted, and usually irrelevant to the day-to-day practice of anyone outside the tribe.  Sometimes, however, developments in federal habeas law significantly impact the long-term consequences of decisions made by defense attorneys years earlier.  Such a development took place in 2022, when the United States Supreme Court handed down its decision in Shinn v. Ramirez.

My goal here is to outline the major implications of Ramirez for Idaho defense lawyers who handle cases in state court, either at the trial, appellate, or post-conviction levels.  In particular, I will focus on the broad lessons of Ramirez in terms of what they suggest about how a state court lawyer can best situate her client for prevailing in federal habeas, should the case get that far.[i]  By way of caveat, the article will not speak to the separate question of what strategies lead to the best outcomes in state court proceedings themselves.  That is something for a skilled and experienced state court practitioner to comment on – not federal habeas lawyers, whose focus is always on the remedy of last resort.

The Pre-Ramirez Safety Net

First, some background is necessary, though I will try to avoid driving away the reader with too much habeas[ii] arcana.  In 1991, the Supreme Court decided Coleman v. Thompson.  Coleman addressed the question of whether ineffective assistance of counsel at the state post-conviction stage could serve as an excuse for a federal habeas court to reach the merits of a constitutional claim.  That is, when a state post-conviction lawyer should have asserted a particular issue and failed to do so without any good reason, is her mistake a basis for the inmate to have the claim heard in federal court?  Coleman’s answer was no.[iii]

The Supreme Court radically altered course in 2012, when it changed the answer to yes.  In Martinez v. Ryan, the Court held that ineffective assistance of post-conviction counsel provided cause for federal courts to reach one important set of claims.  Those claims were limited to ineffective assistance of trial counsel.[iv]  The rule from Martinez applied to most state systems in which trial-ineffectiveness is typically asserted in post-conviction proceedings, rather than on direct appeal.[v]  That made it the rule in Idaho.[vi]

After Martinez, in states like Idaho, a safety net existed for federal constitutional claims that had been wrongly left out of state court litigation.  For the many claims that could be framed in terms of ineffective assistance of trial counsel, the doors to the federal courthouse were now open.  It became a significant exception for a couple of reasons.  One is that, for any claim that has been assessed on the merits in state court, federal habeas review is hamstrung by an extremely demanding standard.[vii] But Martinez claims were by definition not considered on the merits in state courts, as they were missed by initial post-conviction counsel, so they received de novo review in federal habeas.[viii]  The second key aspect of Martinez for present purposes was that it allowed, at least in the Ninth Circuit, substantial expansion of the record in federal court beyond what was presented in state proceedings.[ix]

The Net Removed

That brings us to Ramirez, which appears to have closed much of the window opened by Martinez.  The upshot of Ramirez is that, with limited exceptions most likely applicable in few cases, petitioners whose post-conviction attorneys overlooked claims are now prevented from expanding the record in federal court.[x]  That is a serious problem for the average ineffectiveness claim.  If the claim was missed by post-conviction counsel, the facts supporting the claim were probably left out of the state court record as well.  And if habeas counsel cannot bring the facts out in federal court, they will be off the table altogether.

It is a particularly concerning predicament when it comes to establishing prejudice.  When a trial attorney is faulted for an omission, precedent requires a showing of a reasonable probability of a different result had the action been taken.[xi]  Evidence of how things would have turned out differently is almost invariably outside of the trial record.  And if it is outside the initial post-conviction record as well, it is likely barred from federal review, and the claim will meet a swift death in habeas.[xii]

Prepping for Habeas Post-Ramirez

It is time, then, to turn to how state counsel should react to Ramirez.  The upshot is that no one is entitled to assume federal court will continue to serve as a reliable backstop.  If counsel fail to spot an issue while the case is progressing through the state court system, it might never see the light of day.  That reality gives rise to a number of imperatives for state counsel.

First, preserve any potentially meritorious constitutional claim at every phase of the state court proceedings.  What is more, keep in mind that to preserve these issues for habeas, they must not only be raised as constitutional arguments but as federal constitutional arguments.  Imagine, for example, that you are a trial attorney and you are alleging a violation of Idaho’s rule against hearsay.  Give serious thought to whether it might make sense to assert that your client’s rights under the Sixth Amendment’s Confrontation Clause were violated along with his rights under the hearsay rule.  There is, after all, obvious overlap between hearsay principles and Confrontation Clause law.[xiii]

Or take a situation in which the judge is refusing to allow you to put in evidence you feel is pivotal to your case.  You will almost certainly have points to make with reference to state evidentiary rules.  How about simultaneously invoking your client’s due process right to present a defense?[xiv]  The same right is a candidate for other situations as well.  Even as routine a matter as the denial of a continuance could, under the right circumstances, violate the right to present a defense.

Similar approaches are called for at the appellate level.  If you are, say, an appellate attorney who is arguing to the Idaho Supreme Court that the evidence was insufficient to convict your client, the claim can easily be framed so that it encompasses, in addition to state law, the related federal due process right against conviction based on inadequate evidence.  It is presumably an identical argument, as the tests are the same.[xv]

Just remember that best practice is to cite both the constitutional provision and a case on point from the federal courts, to ensure you are adequately exhausting the issue.[xvi]  In an ideal world, you would delve into the federal constitutional claim in some detail.  Assuming you don’t have the time for that degree of thoroughness, at least include the federal citations.  Don’t forget that complete exhaustion means presentation to the Idaho Supreme Court in a petition for review, even if the Court of Appeals has taken up the claim.[xvii]

State Court Claims Are Essential

Ramirez has notable ramifications for attorneys who handle post-conviction matters in state court, as well.  To begin with, it is more essential than ever to diligently pursue any colorable claim of ineffective assistance of counsel.  In the Martinez era, there was considerable leeway for such claims in a federal court in the Ninth Circuit.  No more.  If your client has a potential ineffectiveness claim, it must be raised in state court.  In searching for ineffectiveness claims, keep in mind that post-conviction attorneys are in many ways in the same position as trial counsel: they have an obligation to investigate matters beyond the record to see if their predecessors should have done anything differently.[xviii]

There is a tendency among some post-conviction practitioners to view their work through appellate lenses because a record already exists when they enter the stage.  The tendency is perhaps more prevalent in places, like Idaho, where many attorneys do the occasional post-conviction case without specializing in the area.  But the tendency is mistaken.  A post-conviction attorney has an opportunity to find evidence that escaped the original lawyer’s attention.  Now that traction in federal court will be more difficult to get, a robust post-conviction investigation is key.

Drafting Ineffectiveness Claims

A special word on drafting ineffectiveness claims is in order, too.  Some scenarios obviously present ineffectiveness concerns.  An objectionable statement on the record at trial that draws no objection is an easy call.  But one of the upshots of Ramirez is a renewed need to think imaginatively and expansively about what exactly qualifies as ineffectiveness.  The Fourth Amendment is a good example.  Substantive Fourth Amendment issues are almost always beyond the reach of federal habeas proceedings because the exclusionary rule generally does not apply there.[xix]  Nevertheless, an inmate may still get habeas relief in federal court on a Sixth Amendment claim that trial counsel was ineffective for failing to bring a suppression motion.[xx]  This is yet another reason to cast a wide net in framing issues with reference to trial-counsel ineffectiveness.

Post-conviction attorneys ought not to forget another category of ineffectiveness claims: those pertaining to direct-appeal-counsel’s performance.  Appellate ineffectiveness remains a legitimate basis for a federal habeas court to reach a claim that would otherwise be procedurally barred.  For the avenue to work, the appellate-ineffectiveness claim itself has to be exhausted in state court.[xxi]  As the road to federal habeas review becomes even more challenging, the paths still standing are especially deserving of attention, and appellate-ineffectiveness is one of them.  The mindset for crafting such claims, unlike when they are directed at trial counsel, is that of an appellate attorney.  That is to say, when you are pursuing an appellate-ineffectiveness claim, you are almost always limited to issues presented by the existing trial record.[xxii]

Your task is to review the trial record and determine what challenges could have been articulated on appeal that were not, much as a direct-appeal attorney herself would do.  Thus, taking into account your responsibility of formulating ineffectiveness claims geared toward both trial and appellate counsel, the best way of conceiving your role is that you yourself are wearing both a trial and appellate hat.  You are searching for fruitful facts to investigate, as a trial lawyer would, but also scouring the established record for issues it supports, as an appellate lawyer would.

Challenge Restrictions on Post-conviction Review

Finally, post-conviction counsel have renewed reason to zealously litigate unreasonable procedural limitations being placed on them by the state courts.  Is your post-conviction judge refusing you resources you need to litigate the case, by preventing you from hiring experts or taking other essential steps?  Is she rejecting well-founded motions for continuances?  Is she imposing unfair page limitations?  Is she denying an evidentiary hearing even though one is called for by state law?  Is she imposing unwarranted limitations on the scope of an evidentiary hearing?  Is she declining to order the State to provide you documentary discovery or authorize depositions despite your entitlement to these fact-finding tools?

Your client will be well-served by you making a clear record of any such restraints and your opposition to them.  In federal court, even after Ramirez, there is still good law that unjustified procedural constraints in state post-conviction open the way to more meaningful federal habeas review.[xxiii]

The bottom line is that Ramirez calls upon state-court practitioners to be careful, comprehensive, and creative in litigating claims with an eye to preserving them for potential federal habeas review.  Although it has gotten more difficult to prevail in federal habeas, you owe it to your clients to give them as much of a chance as you can.

Jonah J. Horwitz is an attorney in the Capital Habeas Unit for the Federal Defender Services of Idaho and the Chair of the Amicus Committee for the Idaho Association of Criminal Defense Lawyers.  After graduating from law school at Northwestern, Jonah clerked for three judges over four years in various state and federal courts.

[i] The suggestions made here are designed for non-capital cases.  Death-penalty matters are unique in many respects and fall outside the scope of the article.  The views expressed here are solely the author’s.

[ii] For convenience, I will use the term “habeas” as shorthand to refer to federal judicial review of state-court judgments.

[iii] 501 U.S. 722, 753 (1991).

[iv] Martinez v. Ryan, 566 U.S. 1, 9 (2012).

[v] Id. at 11.

[vi] See, e.g., Johnson v. State, 162 Idaho 213, 228, 395 P.3d 1246, 1261 (2017) (recognizing that “Martinez applies in Idaho”).

[vii] See, e.g., Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.” (internal quotation marks omitted)). 

[viii] See, e.g., Rodney v. Filson, 916 F.3d 1254, 1262 (9th Cir. 2019).

[ix] See Dickens v. Ryan, 740 F.3d 1302, 1319–21 (2014).  

[x] See 142 S. Ct. 1718, 1735 (2022).

[xi] Strickland v. Washington, 466 U.S. 668, 695 (1984).

[xii] There are exceptions to all of the general habeas rules mentioned here, which are too involved to get into in such a short space.  The article s instead written to capture with a broad brush the general principles at play in habeas practice that apply to the lion’s share of cases.

[xiii] See, e.g., Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”). 

[xiv] See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”).   

[xv] Compare Jackson v. Virginia, 443 U.S. 307, 318 (1979) (articulating the federal constitutional test as “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”), with State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (reiterating the same standard for state-law challenges to the sufficiency of the evidence on appeal).

[xvi] See, e.g., Galvan v. Alaska Dep’t of Corrs., 397 F.3d 1198, 1202–03 (9th Cir. 2005) (finding a claim unexhausted where the petitioner cited only state authorities on appeal).

[xvii] See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

[xviii] See, e.g., Trevino v. Davis, 829 F.3d 328, 347 (5th Cir. 2016) (holding post-conviction counsel to the same standards applicable to trial attorneys).

[xix] Stone v. Powell, 428 U.S. 465, 494 (1976).

[xx] See, e.g., Grumbley v. Burt, 591 F. App’x 488, 499–501 (6th Cir. 2015).

[xxi] See Edwards v. Carpenter, 529 U.S. 446, 453 (2000).

[xxii] See, e.g., Dumas v. Long, No. 5:14-cv-328, 2015 WL 4720583, at *7 n.12 (C.D. Cal. June 5, 2015) (“[T]o the extent petitioner’s ineffective assistance of trial counsel claims rely on evidence not in the trial record . . . , his appellate counsel cannot be faulted for failing to raise the claims as appellate counsel was limited to what was in the trial record.”), adopted by, 2015 WL 4722216 (C.D. Cal. Aug. 6, 2015).

[xxiii] See, e.g., Panetti v. Quarterman, 551 U.S. 930, 954 (2007) (reiterating that federal merits review of a habeas claim is conducted de novo when “the factfinding procedures upon which the [state] court relied were not adequate for reaching reasonably correct results or, at a minimum, resulted in a process that appeared to be seriously inadequate for the ascertainment of the truth” (internal quotation marks omitted)).