In many states and at the federal level, claims of trial, sentencing, and appellate ineffectiveness must be raised through post-conviction proceedings. But what happens if your post-conviction lawyer fails to raise a claim of ineffective assistance that could have won? Or, what if you did not have a lawyer when you filed your post-conviction motion, and because of this you failed to raise a substantial claim of ineffective assistance? In Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Supreme Court held that ineffective assistance in a STATE post-conviction proceeding can allow “substantial,” procedurally defaulted claims of ineffective assistance of counsel to be raised for the first time in a 28 U.S.C. § 2254 petition. The Court also held that failure to raise a “substantial” claim of ineffective assistance because of a prisoner’s “lack of counsel” in a post-conviction proceeding may also excuse a procedural default.
This extremely limited exception applies only where the prisoner’s first opportunity to raise a claim of ineffective assistance is in a post-conviction context. In some jurisdictions, for example, prisoners are free to claim ineffective assistance on direct appeal. But for FEDERAL PRISONERS, claims of ineffective assistance are almost always reserved for 28 U.S.C. 2255 motion.
The Seventh Circuit previously extended the Martinez/Trevino rule to federal prisoners in Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015). Ramirez sought to re-open his 2255 proceedings via a motion under Fed. R. Civ. P. 60(b)(6) after his former 2255 counsel failed to tell him that his 2255 motion had been denied. As a result, Ramirez sought a certificate of appealability too late. The Seventh Circuit held that Ramirez was entitled to relief.
In Brown v. Brown, the Seventh Circuit recently extended Martinez and Trevino to Indiana STATE prisoners as well.
The Brown decision is important for federal prisoners because of its discussion about the obligations of post-conviction counsel, and how to assess whether a post-conviction attorney has rendered ineffective assistance.
According to the Seventh Circuit, “pursuit of unsuccessful arguments and claims does not show ineffective assistance of counsel. But we may compare the claims actually presented to those that might have been presented. Where counsel chose to pursue just one issue that was a virtually certain loser, a petitioner may show deficient performance by showing that a much stronger claim or argument was available.”
The Seventh Circuit held that Brown was entitled to an evidentiary on his claim that post-conviction counsel was deficient.
For federal prisoners, the procedural vehicle one may use to raise Martinez Trevino depends on what the problem is. If the claim is that a substantial claim of ineffective assistance was not presented in a 2255 proceeding due to “lack of counsel” or ineffective 2255 counsel, a federal prisoner will likely need to make this argument via a 28 U.S.C. § 2241 petition.
A federal prisoner has the right to seek 2241 relief when the remedy by way of a 2255 motion is “inadequate or ineffective” to test the legality of detention.
The way the Martinez/Trevino argument goes in this context is like this. The federal prisoner would file a 2241 petition arguing that because of lack of counsel or ineffective 2255 counsel, a substantial claim of pretrial, trial, sentencing, or appellate ineffectiveness was foregone. The prisoner would then use Martinez-Trevino to argue that 2255 is “inadequate or ineffective” under such circumstances. I am aware of no appellate decisions deciding this and so individuals will be venturing into unchartered territory.
The Government would likely oppose this argument by asserting that a federal prisoner has no constitutional right to effective post-conviction counsel, and thus 2255 is not “inadequate or ineffective” based on the same. But this line of reasoning ignores Martinez and Trevino, which created an equitable exception in habeas doctrine to permit criminal defendants to raise substantial, procedurally defaulted claims of ineffective assistance in a later post-conviction proceeding. The argument, contrary to what the Government might claim, has nothing to do with any constitutional right to effective assistance in a post-conviction proceeding.
Why not just file a Rule 60 motion like Ramirez did? Well, the answer is pretty simple. If the federal prisoner is trying to get a NEW ineffectiveness claim before the court you cannot rely on Rule 60 for that purpose UNLESS the NEW claim would “relate” to the timely claims that were originally raised in the 2255 motion. Fed. R. Civ. P. 15(c). A new claim does not “relate back” to a timely claim merely because both claims involve ineffective assistance generally. In other words, most people would have a statute of limitations problem if they tried to add a new claim via a Rule 60 motion. A 2241 petition, on the other hand, is not subject to statute of limitations concerns.
Ramirez was able to rely on Rule 60 partly because the remedy for his problem was simple. Once the court granted Rule 60 relief, it only needed to vacate its prior judgment and reenter it again. Once the judgment was reentered, Ramirez could timely appeal the denial of his 2255 motion and seek a certificate of appealability.
This is an extremely complex area of the law that is developing. If you intend to raise this argument on your own, please be careful. Poorly drafted and argued petitions can, and do, result in bad law. If you can afford to hire a competent lawyer, you should consider that option. But the lawyer also needs to understand how this argument works and the mechanics of federal post-conviction proceedings. See Brown v. Brown, No. 16-1014 (7th Cir. 2017).
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