Procedural Default Research Articles

Relief from Sanctions and Procedural Default in the Public Law Context

Mitchell v News Group Newspapers [2013] EWCA Civ 1537, [2014] 1 WLR 795 is notorious for marking a sea-change in the courts’ approach to compliance with procedural rules. Although since refined in ...

Extending Martinez v. Ryan to Claims of Ineffective Assistance of Appellate Counsel

In March of 2012, in Martinez v. Ryan, the Supreme Court announced a new type of cause under the cause-and-prejudice exception to procedural default in federal habeas cases. This new type of cause allowed federal courts to review a subset of claims that had been procedurally defaulted in state habeas proceedings due to the ineffectiveness of postconviction counsel. The parameters of that subset were the source of a heated debate on the Supreme Court. The majority, limiting its analysis to the facts before it, claimed that the new definition excused only claims of ineffective assistance of trial counsel (IATC). The dissent, however, argued that it would apply to other claims as well. The application of Martinez to excuse procedurally defaulted claims of ineffective assistance of appellate counsel (IAAC) is the subject of this Note.Following Martinez, the circuit courts split along the same lines as the majority and dissent in that case: The Fifth, Sixth, Seventh, Eighth, and Tenth Circuits held that Martinez cannot be used to excuse IAAC claims in addition to IATC claims, whereas the Ninth Circuit held that Martinez can be used to excuse IAAC claims. Many scholars have also written on the potential impact of Martinez. Some of these scholars have predicted or acknowledged the circuit split. None, however, have analyzed in detail the circuit courts’ limitation of Martinez to excusing IATC claims or explored whether that limitation is the correct result. This Note examines the circuit courts’ and commentators’ arguments both in favor of and against limiting Martinez to the IATC context.

Coming to Grips with the Ethical Challenges for Capital Post-Conviction Representation Posed by Martinez v. Ryan

In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state post-conviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is “cause” (and likely also prejudice), and thus a gateway to merits’ review of the claim in federal habeas corpus proceedings. This is potentially a good thing for many habeas petitioners, but creates a serious and as-yet unappreciated ethical problem for federal habeas counsel who also served as state post-conviction counsel. In capital post-conviction cases, the pre-Martinez preference and practice was for continuity of counsel from state to federal court. Now that ineffective representation in state post-conviction proceedings can serve as a basis for review of otherwise defaulted claims, however, a lawyer may be materially limited in her ability to provide ongoing representation by the client’s interest in asserting an ineffectiveness claim.Lawyers who practice in the area of civil litigation or transactional representation are familiar with these “prior work” conflicts and the solution to them, which is to obtain the informed consent of the affected client after full disclosure of the facts giving rise to the conflict and the available alternatives. In the capital habeas context, however, the usual apparatus of professional responsibility law, including the informed consent doctrine and the potential of malpractice liability for mis-handling a conflict, are ill-suited to dealing with the problem thrust upon petitioners’ counsel by Martinez. Ironically, even though the tort doctrine of malpractice and the rules of professional conduct are both intended to protect clients, the rules allow the possibly negligent lawyer to decide whether client protection requires disclosure and consent, or possibly withdrawal from representation. Given the significance of ineffective assistance of counsel in capital cases, however, this kind of self-monitoring would be intolerable. Hence, the puzzle presented by Martinez, which recognizes the inability of lawyers to self-monitor, but fails to provide a mechanism for ensuring that the client’s rights are adequately protected.We suggest, therefore, that petitioners’ counsel cannot bear the sole responsibility for solving the Martinez dilemma. The other systemic and repeat players – States’ attorneys and judges – also have to do their part. After all, it is the invocation of procedural defenses in an effort to preclude merits’ review of the habeas petitioner’s federal constitutional claims that creates the procedural morass we have described. This in turn leads to both inefficient litigation and unjust results. Thus, in most instances, if attorneys for the state agreed – either on their own or after being “leaned on” by the court – waived procedural default and allowed the court to proceed to the merits, litigation would proceed expeditiously and without the ethical taint of potential and actual conflicts of interest. If the claims are not bona fide, they will be rejected. On the other hand, if the issues not previously raised are in fact meritorious, then there are no true “losers” unless you are of the view that death sentences resulting from a trial infected with prejudicial constitutional error should be carried out. Without some cooperative solution, courts will be faced with motions for substitution of counsel or the appointment of independent counsel to evaluate the performance of state post-conviction counsel; state attorneys general will have to deal with the possibility of further delay while the conflict issue is adjudicated. Thus, our tentatively hopeful conclusion to this exploration of the conundrum of Martinez is that the institutional actors with a stake in procedures and outcomes will work together to create an avenue for credible claims of inadequate state post-conviction representation to be investigated competently, for clients to be fully informed and involved in the decision-making process, and ultimately the client’s wishes respected.

La tasación de costas en el proceso de ejecución hipotecaria

En el proceso de ejecución hipotecario, tras la subasta y adjudicación del bien hipotecado, el ejecutado continúa siendo deudor no sólo de la parte del préstamo e intereses ordinarios no saldados con el valor de dicha adjudicación, sino de una importante cantidad correspondiente a los intereses moratorios y costas del proceso, que normalmente supera el 50% del principal reclamado. En este estudio analizamos cómo tal exceso puede y debe ser mitigado mediante un adecuado control de las cantidades presentadas por el acreedor hipotecario en concepto de costas procesales, evitando así abusos amparados en la usual situación de rebeldía procesal del deudor hipotecario y consiguiente falta de impugnación.

Exhausted

The Prison Litigation Reform Act (PLRA) contains an administrative exhaustion provision that was interpreted by the Supreme Court in Woodford v. Ngo in 2006 to impose a procedural default component. This piece argues that we should take seriously Justice Breyer's Woodford concurrence, in which he noted that administrative law doctrine contains well-established exceptions to exhaustion. Although this point might at first seem inconsistent with other Supreme Court cases interpreting the PLRA, this article argues that Justice Breyer's concurrence can be reconciled with those opinions. PLRA exhaustion invokes regular administrative law exhaustion doctrine so long as it is not inconsistent with the statute. More generally, the article argues that we should take administrative law seriously in the corrections context.

Sanchez-Llamas v. Oregon

Sanchez-Llamas v. Oregon, 126 S.Ct. 2669.United States Supreme Court, June 28, 2006.In Sanchez-Llamas v. Oregon, a majority of the U.S. Supreme Court held that suppression of evidence is not an appropriate remedy for violations of Article 36 of the Vienna Convention on Consular Relations and that U.S. states may apply their regular procedural default rules to bar claims brought under Article 36. The Court reached the latter conclusion despite contrary reasoning by the International Court of Justice (ICJ).Article 36(1)(b) of the Vienna Convention provides that when one party country arrests nationals of another party country, it shall inform the foreign nationals without delay that they have the right to have their consulate notified of the arrest, and to communicate with the consulate. Article 36(2) adds that these rights “shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” The United States ratified the Vienna Convention in 1969, along with a protocol to the Convention providing that disputes between nations arising under the treaty could be heard in the ICJ.

The Avena Case in the International Court of Justice and the U.S. Response

I. Background The Vienna Convention on Consular Relations, a multilateral treaty to which the United States, Mexico, and 164 other States (countries) are parties, requires the competent authorities of each party to inform the consulate of the other party if the latter party’s national is arrested and requests that the consulate be notified. The Convention also requires the authorities to forward any communication the arrested person addresses to the consulate, and to inform the person concerned without delay of his or her right to communicate with the consulate. The consular authorities have the right to visit and correspond with that person and to arrange for his or her legal representation. Until the last few years, authorities in the United States frequently did not comply with these requirements, which apparently were little known in law enforcement circles or even among court-appointed defense lawyers. In scores of homicide cases, nationals of States parties to the Consular Convention were sentenced to death even though they had not been given timely notification of their right to communicate with their consulates. In the typical case, the court-appointed defense lawyer failed to raise the issue at the trial, and belatedly did so only on appeal or in a habeas corpus petition after conviction and sentencing. The courts denied relief, either on the ground that procedurally it was too late to raise the matter (the “procedural default rule”), or that the Consular Convention establishes rights only for the States parties to it and not for individuals who seek to enforce the Convention in U.S. courts. In separate proceedings brought over the last few years, Paraguay, Germany, and Mexico have challenged these U.S. practices in the International Court of Justice (ICJ).

International Remedies in National Criminal Cases: ICJ Judgment in Germany v. United States

In Germany v. United States (2001), the International Court of Justice ruled that the Vienna Convention on Consular Relations confers judicially enforceable rights on foreign nationals detained for prolonged periods or sentenced to severe penalties without notice of their right to communicate with their consulates. The Court also ruled that states which fail to give timely notice cannot later invoke procedural default to bar individuals from judicial relief. However, the Court did not clearly address other issues, such as requiring individuals to show prejudice to the outcome of the trial, or denial of certain remedies for Convention violations, which may effectively foreclose relief.

The decline of habeas corpus

Although habeas corpus was established to guarantee prisoners the right to petition federal courts to ensure that state courts had not erred in their conviction and sentencing, the recent trend of the federal habeas review appears to restrict those rights. This article first reviews the historical development of habeas corpus. It then explains that the recent habeas decisions of the federal courts have suppressed the federal habeas revolution by limiting successive petitions for federal habeas review, implementing a retroactive threshold requirement, and establishing a procedural default standard and a full and fair rule. The impact of Congress's current movement and the antiterrorism bill signed by the president on habeas corpus is also discussed. The article concludes that the trend of federal habeas review runs counter to the separation of power and indicates an ominous sign for the future of the habeas writ.

Narrowing the Eye of the Needle: Procedural Default, Habeas Reform, and Claims of Ineffective Assistance of Counsel

Narrowing the Eye of the Needle: Procedural Default, Habeas Reform, and Claims of Ineffective Assistance of Counsel

The Law of Teacher Evaluation: Case Law Update

This article reviews the law of teacher evaluation using recent cases. The purpose is to assist administrators in separating professional lore from legal requirements. Case analysis, with citations, is provided in several topic areas including procedural default, remediation plans, statutory discrimination, and grievance arbitrability.

THE REHNQUIST COURT AND JUDICIAL ACTIVISM: THE DEVELOPMENT OF CONSERVATIVE HABEAS CORPUS POLICY

This paper links the selection of Supreme Court justices to change in federal habeas corpus policy. This change, sought by every Republican president since Richard Nixon, is strongly conservative. It restricts access to federal court by state prisoners seeking redress for alleged violation of Constitutional rights. This research analyzes the judicial selection process after Earl Warren's retirement as Chief Justice. It compares decisions of the Warren, Burger and Rehnquist Courts on habeas corpus questions using descriptive quantitative analysis and qualitative doctrinal analysis. The Burger Court was unsuccessful in bringing about conservative change, but the Rehnquist Court, by the early 1990s, had dramatically accomplished its goals. The Rehnquist Court developed much stricter standards for obtaining review in the areas of the abuse of the writ in successor petitions, procedural default and retroactivity of new constitutional rules. The Rehnquist Court's conservative policy was judicially activist in that it overturned precedent and used statutory interpretation to bring about policies rejected by Congress.

Ineffective Assistance and Procedural Default in Federal Habeas Corpus

Ineffective Assistance and Procedural Default in Federal Habeas Corpus

Ariadne's Provisions: A "Clue of Thread" to the Intricacies of Procedural Default, Adequate and Independent State Grounds, and Florida's Death Penalty

This Article will attempt to provide a “clue of thread” to state prisoners who wish to return alive from their venture into the habeas corpus corridor of the labyrinth of federalism. This labyrinth’s intricate passageways include the doctrines of procedural default and adequate and independent state grounds. The labyrinth of federalism houses the half-capital punishment and half-states rights creature born from a series of unfortunate circumstances typical of Greek tragedies. Like the minotaur, this creature demands human sacrifices.

Alibi Notice Rules: The Preclusion Sanction as Procedural Default

Alibi Notice Rules: The Preclusion Sanction as Procedural Default

State Forfeiture Rules and Federal Review of State Criminal Convictions

The doctrines regulating federal scrutiny of state criminal convictions have undergone substantial revision in the last few years.' Nonetheless, some principles seem to have remained constant. One such principle is the pattern of choice between federal and state preclusion standards on direct Supreme Court review and federal habeas corpus in cases in which federal constitutional rights have arguably been forfeited by waiver or procedural default.2 The preclusion standards at issue here are those that specify whether a federal reviewing court may address the merits of a constitutional claim not previously litigated or whether, in contrast, that claim has been forfeited. To say that the pattern of choice has remained constant, however, is not to say that it is either simple or adequately explained in the cases or literature. On the contrary, most discussion focuses on one piece of the puzzle or another, without addressing how these jumbled pieces fit together.8 Yet

Criminal Waiver, Procedural Default and the Burger Court

This Article distinguishes between the content or scope of a constitutional right as it is judicially defined and the fullness of its availability in practice. Rights may go by the board because they are not known or understood, because they are not asserted or not asserted in a prescribed fashion or because, for one reason or another, they are deemed to have been relinquished. They may be lost by waiver or by default. The aim here is to examine developments in this area, particularly those of the recent past, and, also, to advance certain proposals.