Why Only Gideon? Martinez V. Ryan and the "Equitable" Right to Counsel in Habeas Corpus

In 2012, the U.S. Supreme Court, in Martinez v. Ryan, recognized for the first time a limited right to assistance of counsel in post conviction proceedings. Unexpectedly, the Court traced this right to equitable, rather than constitutional, authority. Moreover, the right extends only to initial-review post conviction proceedings, i.e., proceedings that offer the first meaningful opportunity for an inmate to raise the claim at issue. Likewise, the right extends only to substantial claims of ineffective assistance of trial counsel. The Court’s depiction of this limited right to post conviction counsel as “equitable” avoided the pitfalls that would have been posed by the recognition of a constitutional right to counsel. Specifically, as an equitable right, states are not required to provide affirmative assistance of post conviction counsel. Rather, a state may simply implement the right at the back end of postconviction proceedings by waiving any default of a substantial trial ineffective assistance of counsel that arises as a result of the petitioner’s pro se status or postconviction counsel error. Additionally, the Court sidestepped the infinite-continuum-of-habeas dilemma that recognition of a constitutional right would present: if an inmate has a constitutional right to counsel in an initial-review collateral proceeding, he or she will also be entitled to effective assistance of counsel. And where constitutionally guaranteed post conviction counsel is constitutionally ineffective, the inmate must have a remedy – i.e., a second round of postconviction proceedings – to cure the prejudice. The same scenario plays out in each subsequent round of postconviction proceedings. The equitable right to counsel carries with it no such baggage. In short, the equitable right to counsel, at least on its face, is presented as the constitutional right’s more flexible and much less complicated cousin. This Article argues, however, that by limiting the relief provided by the equitable right to counsel only to substantial ineffective assistance of trial counsel, the Court drew a line that is unsustainable. The elevation in postconviction enforcement of claims derived from Gideon v. Wainwright over all other substantial claims of constitutional error finds no support in the history and function of the Great Writ. Rather, if equity requires a remedy where postconviction counsel fails to raise a Sixth Amendment ineffective assistance of trial counsel claim and thus defaults the claim in federal court, it also demands relief where counsel fails to present any other substantial constitutional violation that compromises the fundamental fairness or the accuracy of the criminal process.