Trevino v. Thaler, No. 11-10189; U.S. Supreme Court; opinion by Breyer, J.; dissents by Roberts, C.J., and Scalia, J.; decided May 28, 2013. On certiorari to the U.S. Court of Appeals for the Fifth Circuit.

In Martinez v. Ryan, 566 U.S. 1, this Court held that "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez regarded a prisoner from Arizona, where state procedural law required the prisoner to raise the claim during his first state collateral review proceeding. Ibid. This case regards a prisoner from Texas, where state procedural law does not require a defendant to raise his ineffective-assistance-of-trial-counsel claim on collateral review. Rather, Texas law appears to permit a prisoner to raise such a claim on direct review, but the structure and design of the Texas system make it virtually impossible for a prisoner to do so. The question presented in this case is whether, despite this difference, the rule set out in Martinez applies in Texas.

Petitioner Trevino was convicted of capital murder in Texas state court and sentenced to death after the jury found insufficient mitigating circumstances to warrant a life sentence. Neither new counsel appointed for his direct appeal nor new counsel appointed for state collateral review raised the claim that Trevino’s trial counsel provided ineffective assistance during the penalty phase by failing to adequately investigate and present mitigating circumstances. When that claim was finally raised in Trevino’s federal habeas petition, the district court stayed the proceedings so Trevino could raise it in state court. The state court found the claim procedurally defaulted because of Trevino’s failure to raise it in his initial state postconviction proceedings, and the federal court then concluded that this failure was an independent and adequate state ground barring the federal courts from considering the claim. The Fifth Circuit affirmed. Its decision predated Martinez, but that court has since concluded that Martinez does not apply in Texas because Martinez‘s good-cause exception applies only where state law says that a defendant must initially raise his ineffective-assistance-of-trial-counsel claim in initial state collateral review proceedings, while Texas law appears to permit a defendant to raise that claim on direct appeal.

Held: Where, as here, a state’s procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective-assistance-of-trial-counsel claim on direct appeal, the exception recognized in Martinez applies. Pp. 5-15.

(a) A finding that a defendant’s state law "procedural default" rests on "an independent and adequate state ground" ordinarily prevents a federal habeas court from considering the defendant’s federal constitutional claim. Coleman v. Thompson, 501 U.S. 722,729-30. However, a "prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of the federal law." Martinez, 566 U.S. at —. In Martinez, the court recognized a "narrow exception" to Coleman‘s statement "that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." See 566 U.S. at —. That exception allows a federal habeas court to find "cause" to excuse such default where (1) the ineffective-assistance-of-trial-counsel claim was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that the claim "be raised in an initial-review collateral proceeding." Id. at —. Pp. 5-8.

(b) The difference between the Texas law — which in theory grants permission to bring an ineffective-assistance-of-trial-counsel claim on direct appeal but in practice denies a meaningful opportunity to do so — and the Arizona law at issue in Martinez — which required the claim to be raised in an initial collateral review proceeding — does not matter in respect to the application of Martinez. Pp. 8-14.

(1) This conclusion is supported by two characteristics of Texas’procedures. First, Texas procedures make it nearly impossible for an ineffective-assistance-of-trial-counsel claim to be presented on direct review. The nature of an ineffective-assistance claim means that the trial record is likely to be insufficient to support the claim. And a motion for a new trial to develop the record is usually inadequate because of Texas rules regarding time limits on the filing, and the disposal, of such motions and the availability of trial transcripts. Thus, a writ of habeas corpus is normally needed to gather the facts necessary for evaluating these claims in Texas. Second, were Martinez not to apply, the Texas procedural system would create significant unfairness because Texas courts in effect have directed defendants to raise ineffective-assistance-of-trial-counsel claims on collateral, rather than on direct, review. Texas can point to only a few cases in which a defendant has used the motion-for-a-new-trial mechanism to expand the record on appeal. Texas suggests that there are other mechanisms by which a prisoner can expand the record on appeal, but these mechanisms seem special and limited in their application, and cannot overcome the Texas courts’ own well-supported determination that collateral review normally is the preferred procedural route for raising an ineffective-assistance-of-trial-counsel claim. Respondent also argues that there is no equitable problem here, where appellate counsel’s failure to bring a substantial ineffective-assistance claim on direct appeal may constitute cause to excuse the procedural default, but respondent points to no case in which such a failure by appellate counsel has been deemed constitutionally ineffective. Pp. 8-13.

(2) The very factors that led this court to create a narrow exception to Coleman in Martinez similarly argue for applying that exception here. The right involved — adequate assistance of trial counsel — is similarly and critically important. In both instances practical considerations — the need for a new lawyer, the need to expand the trial court record, and the need for sufficient time to develop the claim — argue strongly for initial consideration of the claim during collateral, not on direct, review. See Martinez, 566 U.S. at —. In both instances failure to consider a lawyer’s "ineffectiveness" during an initial-review collateral proceeding as a potential "cause" for excusing a procedural default will deprive the defendant of any opportunity for review of an ineffective-assistance-of-trial-counsel claim. See id. at —. Thus, for present purposes, a distinction between (1) a state that denies permission to raise the claim on direct appeal and (2) a state that grants permission but denies a fair, meaningful opportunity to develop the claim is a distinction without a difference. Pp. 13-14.

449 Fed.Appx. 415, vacated and remanded.