Supreme Court Update-Part I: Missouri v. Frye (10-444), Lafler v. Cooper (10-209) and Martinez v. Ryan (10-1001)

March 22, 2012 Supreme Court Update

Greetings, Court fans!

This week, the Court shone the spotlight on the Sixth Amendment with a triple feature of cases involving the ineffective assistance of counsel. The first two have created a splash: In Missouri v. Frye (10-444) and Lafler v. Cooper (10-209), the Court ruled for the first time that defendants have a constitutional right to effective assistance of counsel during plea bargaining. When a lawyer gives clearly wrong advice or fails completely to communicate an offer, the majority found that the defendant may have a second chance to accept a plea offer, even after conviction at trial. The third, Martinez v. Ryan (10-1001), is less sweeping and more technical, holding that there is no procedural bar to federal habeas review of a claim of ineffective assistance of counsel at trial where, under state law, such a claim may only be raised in state collateral proceedings and where state post-conviction counsel is itself ineffective for failing to raise the issue in state habeas proceedings.

In Missouri v. Frye (10-444), college student Galin Frye was charged for the fourth time with driving with a revoked license and faced a maximum prison term of four years. The prosecutor sent a letter offering Frye's attorney two plea options: a felony plea with a recommendation of 10 days in jail as "shock" time, or a misdemeanor plea with a 90-day sentence recommendation. Frye's attorney did not tell his client about the offers, which expired according to the terms of the prosecutor's letter. After racking up one more arrest for driving with a revoked license and with no plea agreement in hand, Frye ultimately pleaded guilty. The trial court sentenced him to three years in prison. Frye sought post-conviction relief in state court, alleging that his attorney's failure to tell him about the plea offer denied him effective assistance of counsel. He testified that he would have pleaded guilty to the misdemeanor charge had he known about the offer. Reversing a trial court order, the Missouri Court of Appeals ruled in Frye's favor under the two-prong test set forth in Strickland v. Washington (1984), which requires a petitioner to demonstrate (1) that counsel was deficient and (2) that the deficient performance caused prejudice. That court deemed Frye's guilty plea withdrawn, and remanded to permit him to insist on a trial or to plead guilty to a charge the prosecutor deemed appropriate.

In past decisions, the Court has ruled that the Sixth Amendment guarantees defendants effective assistance of counsel at all "critical" stages in criminal proceedings, including arraignments, lineups, and the entry of a guilty plea. Here, the State argued that two earlier cases applying Strickland to advice relating to the entry of a guilty plea did not establish a right to effective assistance of counsel during the course of the plea bargaining process because in those cases the guilty pleas entered were invalid due to inaccurate advice pertinent to the pleas. Here, in contrast, Frye's ultimate guilty plea did not result from any bad advice and his claim related to representation in conjunction with another offer altogether. The State also pointed out that defendants have no right to plea offers or plea bargains in the first place. But the majority, led by Justice Kennedy, rejected the State's arguments. The Court observed that modern criminal justice is a "system of pleas" in which 97 percent of federal convictions and 94 percent of state convictions result from guilty pleas. Plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system," and "is almost always the critical point for a defendant." The right to adequate assistance of counsel at critical stages cannot, therefore, exclude "the central role plea bargaining plays."

Having established the right, the Court turned to the duties and responsibilities of defense counsel in the plea bargaining process. The Court held that defense counsel must "communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." When Frye's attorney allowed the prosecutor's offer to expire without presenting it to his client, he failed to render the assistance the Sixth Amendment requires. Turning to Strickland's second prong, the Court held that, to show prejudice where a plea offer has lapsed or been rejected because of defense counsel's inadequate performance, defendants must demonstrate (1) "a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel," (2) a "reasonably probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it," and (3) that the conviction or sentence under the offer's terms would have been less severe than under the judgment or sentence actually imposed. Having found Frye's attorney deficient but finding some doubt that the prosecution would have adhered to the plea bargain it had offered in light of Frye's fifth arrest, the Court remanded the case to the state courts to address the prejudice prong.

In the second case taken up by the Court, Lafler v. Cooper (10-209), Anthony Cooper shot a woman in the hip and buttocks and was charged with assault with intent to murder. Twice, prosecutors offered him a plea deal with a sentencing recommendation of 51 to 85 months. Cooper initially signaled that he would accept the offer, but his attorney advised him to reject it because Michigan law didn't allow an attempted murder conviction for wounds below the waist. As it turns out, this advice was dead wrong. Cooper was tried, convicted, and sentenced to the mandatory minimum of 185 to 360 months in prison. The trial court rejected Cooper's claim that his attorney's advice constituted ineffective assistance and the appellate court agreed. On federal habeas review, the district court found in Cooper's favor and ordered "specific performance" of the original plea offer. The Sixth Circuit affirmed.

The majority, again led by Justice Kennedy, followed the dictates it laid out in Frye and applied Strickland. Because there was no dispute that Cooper's counsel's inaccurate advice amounted to constitutionally deficient performance, the Court addressed only the question of prejudice. Contending that the purpose of the Sixth Amendment is to protect the right to a fair trial, the State argued that there could be no prejudice if a defendant – like Cooper – was eventually convicted at a fair trial. As it had in Frye, the majority disagreed, stressing the right to effective assistance of counsel at all "critical stages" of criminal proceedings and underscoring "the central role plea bargaining plays in securing convictions and determining sentences." Finding prejudice in Cooper's case, the Court considered the appropriate remedy. A remedy in the Sixth Amendment context must "neutralize the taint" of the constitutional violation without granting the defendant a windfall or unduly taxing state resources. Where a defendant's injury is a longer sentence than he would have had under a favorable plea, the court should exercise its discretion to determine whether the defendant should receive the sentence the government offered, the sentence imposed after trial, or a sentence between the two. Where resentencing alone will not cure the injury – for example, where the government offered a plea to charges less serious offenses than those of which the defendant was convicted at trial, or where a court must impose a mandatory sentence – the court may require the prosecution to reoffer the plea proposal, at which point the court may decide whether to vacate the conviction and accept the plea.

Justice Scalia dissented in both cases. In Frye, the Chief Justice and Justices Thomas and Alito joined him. The Chief Justice and Justice Thomas stood with him again in Lafler, but Justice Alito penned a separate dissent. Scalia accused the majority of opening "a whole new field" of "plea-bargaining law" and establishing a "constitutional right to effective plea-bargainers," and branded the remedies set forth in Lafler "absurd" because they give the trial court discretion to reject a reoffered plea agreement and leave the conviction and sentence after trial undisturbed – essentially giving the trial court complete discretion to remedy an ostensibly unconstitutional conviction or to provide no remedy at all. In the dissenters' eyes, the Sixth Amendment right to effective assistance of counsel aims to assure a fair trial and a reliably "just result." Because there is no right to a plea bargain, mistakes by counsel relating to plea bargains do not "deprive the defendant of a substantive or procedural right to which the law entitles him." According to Scalia, the majority elevated plea bargaining from "a necessary evil to a constitutional entitlement," and embraced "the sporting-chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves."

In his four-paragraph separate dissent in Lafler, Justice Alito agreed with the other dissenters that Cooper received a fair trial and suffered no constitutional injustice. He wrote separately to zero in on the majority's "opaque discussion of the remedy that is appropriate when a plea offer is rejected due to defective legal representation." Alito notes that, in the face of a Sixth Amendment violation, the logical remedy would be to give a defendant like Cooper the benefit of the favorable plea deal. Because the majority did not prescribe that remedy, Alito believes it tacitly recognized that injustice could result from such an approach, for example when important information about the defendant's culpability came to light after the offer was rejected, or when the state has expended considerable resources as a result of the defendant's rejection of the plea offer. Noting that the majority left the remedy in individual cases to the discretion of trial courts, he expressed his hope that those courts would exercise that discretion "in a way that mitigates [Lafler's] potential to produce unjust results."

Justice Kennedy also wrote for the majority in Martinez v. Ryan (10-1001), this time joined by all of his colleagues except Justices Scalia and Thomas. The case involved Luis Mariano Martinez, whom a jury convicted of sexual conduct with his 11-year-old stepdaughter. On direct appeal, the State appointed new counsel for Martinez. That attorney raised several arguments, including insufficiency of the evidence, but did not argue that trial counsel was ineffective. Under Arizona law, such claims may only be raised in collateral postconviction proceedings. While the appeal was pending, counsel initiated state collateral proceedings, but did not raise an ineffective assistance claim, and ultimately claimed she could find no colorable claims at all. The trial court dismissed the petition for postconviction relief and Arizona's Court of Appeals affirmed. After securing new counsel, Martinez submitted a second petition for postconviction relief, claiming his trial counsel had been ineffective for failing to challenge the prosecution's evidence. The state court dismissed the petition based on an Arizona Rule prohibiting relief on a claim that could have been raised in an earlier collateral proceeding. In other words, Martinez should have raised his ineffective assistance claim in his first collateral proceeding. Martinez filed a habeas corpus petition in federal district court, again asserting ineffective assistance of trial counsel. Typically, the doctrine of procedural default would prevent a federal court from reaching the merits of claims, like Martinez's ineffective assistance of trial counsel claim, that have been denied in state courts based on established state procedural rules. The district court therefore denied the petition, relying on Coleman v. Thompson (1991), which held that an attorney's errors in postconviction proceedings do not establish cause for a procedural default. The Ninth Circuit affirmed, citing Coleman and noting that there is no constitutional right to counsel in collateral proceedings. The Ninth Circuit did observe, however, that Coleman reserved ruling on whether there might be an exception in cases in which "state collateral review is the first place a prisoner can present a challenge to his conviction."

Here, referring to such circumstances as "initial-review collateral proceedings," the majority declined to reach the constitutional question Coleman suggested. Instead, it framed the question narrowly: "whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding." The Court started with Coleman's admonition that, ordinarily, "[n]egligence on the part of a prisoner's postconviction attorney does not qualify as ‘cause'" to excuse procedural default. But Coleman did not address the situation of initial-review collateral proceedings. In such a proceeding, if an attorney errs, it is likely that no state court will ever hear the prisoner's claim, since it could not have been raised in the original trial court or on direct review. Where, as in Martinez's case, the initial-review collateral proceeding "is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial," the collateral proceeding is equivalent to a the direct appeal as to the ineffective assistance claim. And a prisoner without adequate counsel in the initial-review collateral proceeding will be ill-equipped to present an ineffective assistance claim in accordance with state post-conviction procedures.

To rectify this situation, the majority created a narrow exception to Coleman only with respect to claims of ineffective assistance of counsel at trial. When a state requires a prisoner to raise a claim of ineffective assistance of trial counsel in a collateral proceeding (rather than on direct appeal), the prisoner may now establish cause for default under two circumstances: (1) where state courts do not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance of counsel at trial, and (2) where appointed counsel in an initial review collateral proceeding was ineffective under the Strickland standards. The prisoner must also establish that the underlying ineffective assistance of trial counsel claim is substantial in order to avoid default. The majority took pains to explain that this was an equitable ruling, rather than a constitutional one: prisoners may not raise a "free-standing constitutional claim" to a right to effective post-conviction counsel. States need not appoint counsel in initial-review collateral proceedings, but instead can choose not to assert procedural defaults in cases like Martinez's.

Justice Scalia, joined by Justice Thomas, issued a pointed dissent, claiming that the majority's opinion is not the exercise in restraint that it claims to be. He argued that the new "equitable" rule is no different in practice from a new constitutional right, and asserted that "no one really believes that the newly announced ‘equitable' rule will remain limited to ineffective-assistance-of-trial-counsel cases" as "[t]here is not a dime's worth of difference" between such cases and others in which initial state habeas proceedings afford prisoners their first opportunities to raise certain claims. He also opined that states will feel compelled to appoint post-conviction counsel in all cases and, since the performance of that counsel may be challenged, "the States will always be forced to litigate in federal habeas, for all defaulted ineffective-assistance-of-trial-counsel claims . . . either (1) the validity of the defaulted claim (where collateral-review counsel was not appointed), or (2) the effectiveness of collateral-review counsel (where collateral-review counsel was appointed)." In the dissenters' view, the Court's holding is a "radical alteration" of habeas jurisprudence that will open the federal habeas floodgates by closing "[t]he principal escape route from federal habeas."

Now that we have cleared the ineffective assistance of counsel docket, we will be back very soon with the other decisions issued this week. Stay tuned.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400