Preview: A Preliminary Survey of Issues Raised by Martinez v. Ryan

Abstract:     
The Court’s 2012 decision in Martinez v. Ryan raises numerous issues for litigants and courts. Those issues as well as developing case law as of September 2012 are included in the discussion posted here, forthcoming as part of the 2012-2013 updates to the comprehensive treatise on criminal procedure coauthored by Professors Wayne LaFave, Jerold Israel, Nancy King, and Orin Kerr (database CRIMPROC on Westlaw).

Topics addressed include the rationale for the Martinez decision; what constitutes an “initial review collateral proceeding”; the effect of the decision on Edwards v. Carpenter; measuring the effectiveness of post-conviction counsel after Martinez; what is a “substantial” claim of trial counsel ineffectiveness; and the application of Martinez to defaults during proceedings after the “initial review collateral proceeding. ” The discussion also includes arguments regarding extending Martinez to petitioners who decline representation in initial review collateral proceedings; to petitioners who retain counsel for those proceedings; and to petitioners who do not initiate such proceedings. Also examined are the possible adoption of a Martinez-like exception for the evidentiary limitations in Pinholster, the statute of limitations bar, or the successive petitions bar, as well as the possible extension of Martinez as an exception to the limitation on successive § 2255 applications and similar procedural barriers in state post-conviction proceedings.

Number of Pages in PDF File: 21

Keywords: habeas, procedural default, Martinez, cause and prejudice, 2255, 2254

Accepted Paper Series