Toward a Right to Litigate Ineffective Assistance of Counsel

The Supreme Court's decisions in Martinez v. Ryan and Maples v. Thomas have been hailed as evidence of the Court's increasing willingness to grant some relevance to the competence of postconviction counsel. While this may be true, for the vast majority of defendants convicted of noncapital crimes, the rulings provide little in the way of immediate assistance because most such prisoners have no federal habeas counsel and therefore no means to take advantage of the procedural protections Martinez and Maples provide. In this Article, I argue that, in these cases, the Court has taken a step closer to recognizing not necessarily a broad right to postconviction counsel but rather a narrower yet critical right to raise a claim of ineffective assistance of trial counsel in at least one forum. At least with respect to claims of ineffective assistance of trial counsel, the Court appears to be moving toward recognition that the right to raise such claims is as important as the right to raise record-based claims typically brought by constitutionally required appellate counsel. My view is that this development is both far more significant than any signals the Court has sent with respect to the provision of postconviction counsel generally, and more likely to eventually vindicate the bedrock principle embodied in Gideon v. Wainwright.