A Tale of Three Prejudices: Restructuring the " Martinez Gateway"

INTRODUCTIONIn the vast majority of cases, litigants in the United States get a single bite of the apple. The issue, case, or appeal may be waived, barred by the passage of time, or simply lost on the merits. The litigant is then precluded from raising the issue or claim in a subsequent proceeding. The same principle generally applies to habeas corpus-if a petitioner fails to raise a claim at the appropriate moment or before the correct court, that ground for relief could very well be forfeited forever. When a state court dismisses or rejects a habeas petitioner's alleged grounds for relief on a procedural basis (for example, the failure to comply with a statute of limitations), federal courts will deem such claims defaulted.1 Out of deference to the state court's prior determination, federal habeas courts generally will not adjudicate such defaulted claims.2 While there are a variety of mechanisms by which a habeas petitioner may resurrect barred claims, each carries a high burden of proof.3 The most common method of breathing life into a procedurally defaulted claim requires the habeas petitioner to demonstrate both cause for not raising the claim below and prejudice from not being allowed another shot at the merits in a federal proceeding.4Petitioners seeking to resurrect ineffective-assistance-of-counsel claims once faced the same gauntlet as all other procedurally defaulted habeas grounds for relief.5 If a petitioner fails to raise an ineffective-assistance-of-counsel claim in an earlier state court proceeding, it becomes exceedingly difficult to reach the merits of that ground for relief during any subsequent federal review.6 This situation was exacerbated by the United States Supreme Court's 1991 decision in Coleman v. Thompson,7 which held that an attorney's ineffective assistance could not constitute the cause required for a petitioner to resurrect a procedurally defaulted claim.8In 2012, the Supreme Court narrowly opened the door previously sealed by Coleman. Under v. Ryan,9 petitioners can now use either their state post-conviction review (PCR) counsel's ineffectiveness or their own status as a pro se litigant as the cause necessary to excuse a procedural default.10 Part of the Court's reasoning was that effective assistance of counsel is a bedrock principle in our justice system.11 Due to a variety of factors-including the need for both an expanded record and new counsel-direct review is often not the most appropriate procedural phase for adjudicating ineffective-assistance-of-trial-counsel (IATC) claims.12 One of the Court's primary concerns was that, where a state required an IATC claim to be initially raised on collateral review, an incompetent counsel or the petitioner's own unfamiliarity with the legal system could result in a procedural default.13However, the test is not a simple one.14 It requires a petitioner to establish four elements concerning his or her defaulted claim: (1) the claim is substantial; (2) the state PCR counsel was ineffective or there was no PCR counsel; (3) the claim was initially heard in state PCR proceedings; and (4) the claim was required, under state procedural law, to be raised in the state PCR proceeding.15 While the Supreme Court subsequently altered the fourth prong,16 still controls the first three. Although courts refer to the test in different ways,17 this Comment will style it as the Martinez gateway,18 due largely to its procedural similarities with the actual innocence gateway.19The test is not without its problems. The exact language of the opinion is open to interpretation, as the Court included conflicting definitions for the same element.20 There are also inherent tensions between and the incorporated Strickland v. Washington21 ineffective-assistance-of-counsel standard.22 Further, the Court did not go far enough to ensure that the high burden placed on petitioners by Strickland does not swallow the equitable exception designed in Martinez. …