Ten years ago, the Supreme Court held in Martinez v. Ryan1 that ineffective assistance of postconviction counsel, in an initial-review proceeding, may establish cause for a habeas petitioner’s procedural default of a claim of ineffective assistance of trial counsel.2 The Court affirmed this ruling the subsequent year in Trevino v. Thaler.3 Both cases served to vindicate defendants’ Sixth Amendment right to counsel by ensuring that they had at least one meaningful opportunity to be heard after having twice been given ineffective counsel by the state.4 Last Term, in Shinn v. Ramirez,5 the Court revisited the question of a petitioner’s right to bring and develop trial-ineffectiveness claims on habeas review. In two consolidated cases, the Court held that the Antiterrorism and Effective Death Penalty Act6 (AEDPA) bars federal courts from considering evidence outside the state-court record to prove Martinez claims.7 Thus, although habeas petitioners may assert such claims, petitioners are now unable to marshal the evidence required to prove them in the habeas forum. In this way, the Court effectively — though not explicitly — overruled its precedents, privileging “state sovereignty” over stare decisis and harming indigent defendants in the process.
Ramirez consolidated the cases of David Martinez Ramirez and Barry Lee Jones.8 After being convicted of first-degree murder and felony murder, respectively, Ramirez and Jones received death sentences, which were affirmed on direct review.9 Ramirez petitioned for state postconviction relief, alleging trial-level ineffective assistance of counsel (IAC) due to failure to investigate and present mitigation evidence at sentencing; this petition was summarily denied as untimely.10 Jones’s state postconviction petition, in turn, alleged trial-level ineffectiveness for inadequate pretrial investigation; it was also summarily denied.11
Jones and Ramirez next filed habeas petitions in federal court, alleging that their postconviction attorneys were ineffective for failing to raise and develop claims of their trial attorneys’ ineffectiveness.12 In both cases, the district court denied relief under then-governing precedent, finding their claims procedurally defaulted.13 Ramirez and Jones each appealed to the Ninth Circuit.14 While their cases were pending, the U.S. Supreme Court decided Martinez, which held that postconviction-level IAC, in an initial-review proceeding, may establish cause for the procedural default of a trial-level IAC claim.15 The Ninth Circuit remanded each case in light of Martinez.16
In both cases, the district court ordered supplemental briefing and accepted new evidence to reevaluate whether cause existed.17 New evidence in Ramirez’s case included testimony of family members, never before contacted, as to his childhood abuse, neglect, and early indications of intellectual disability; the admittedly inadequate representation of unprepared, inexperienced trial counsel; psychological evidence of a disability; and a lack of a “strategic reason,” on the part of trial counsel, for failing to present this information at sentencing.18 The district court considered the new evidence, but nonetheless found Ramirez’s IAC claim to be without merit and hence defaulted.19 Jones’s evidentiary hearing, in turn, took place over a seven-day period, and it demonstrated trial counsel’s “fail[ure] to conduct an adequate pre-trial investigation . . . [and] his failure to uncover key evidence” as to the medical timeline — which suggested that the assault could not have been committed when Jones was present with the victim.20 Based on this evidence, the court found cause and granted Jones’s habeas petition.21
Arizona appealed in Jones’s case, arguing that 28 U.S.C. § 2254(e)(2) did not permit evidentiary hearings on claims not pursued in state court.22 But the Ninth Circuit affirmed,23 holding that “Martinez’s procedural-default exception applies to merits review, allowing federal habeas courts to consider evidence not previously presented to the state court.”24 On appeal in Ramirez’s case, the Ninth Circuit held that the failure of postconviction counsel to raise and develop the trial-level IAC claim constituted cause and remanded, stating that Ramirez was “entitled to [the] evidentiary development”25 that postconviction counsel failed to provide.26 Arizona petitioned for a rehearing en banc in both cases, claiming that remanding for additional factfinding violated § 2254(e)(2); the petitions were denied.27 When Arizona then petitioned the U.S. Supreme Court, the Court consolidated the cases and granted certiorari.28
The Supreme Court reversed.29 As to whether § 2254(e)(2) permits federal courts to accept new evidence in evaluating the merits underlying Martinez claims, the Court held that “a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.”30 That is, while a federal habeas court may conclude that ineffectiveness of state postconviction counsel — in failing to raise an underlying ineffectiveness claim of state trial counsel — may suffice to constitute cause to excuse a petitioner’s procedural default under Martinez, the petitioner may still be deemed “at fault” for § 2254(e)(2) purposes, rendering her unable to further develop the excused claim under Ramirez.31
Writing for the majority, Justice Thomas32 first emphasized the importance of state sovereignty and noted the “intru[sion]” thereon by federal habeas review.33 He stated that federal intervention in state criminal adjudications “overrides the State’s sovereign power to enforce ‘societal norms through criminal law,’” “imposes significant costs on state criminal justice systems,” harms finality, and “undermines the States’ investment in their criminal trials.”34 Second, he asserted that AEDPA was enacted to limit federal habeas relief, as exhibited by its strict exhaustion requirements, its mandate for federal courts to base their review of claims adjudicated on the merits in state court “solely on the state-court record,” and the doctrine of procedural default.35 These restrictions “promote federal-state comity” and respect for states.36
Under the doctrine of procedural default, “federal courts generally decline to hear any federal claim that was not presented to the state courts ‘consistent with [the State’s] own procedural rules.’”37 Procedurally defaulted claims can be excused only if the petitioner proves cause and actual prejudice, where cause consists of external impediments, which generally do not include attorney error.38 Martinez provides an exception, although a “narrow” one,39 which applies when “the State requires petitioners to raise [trial-level IAC] claims for the first time during state collateral proceedings,”40 as in Arizona.41
Justice Thomas asserted, however, that “[t]here is an even higher bar for excusing a [petitioner’s] failure to develop the state-court record”42 under Keeney v. Tamayo-Reyes.43 There, attorney error is considered insufficient to justify further evidentiary development,44 at least for petitioners “who were not diligent.”45 Justice Thomas argued that Congress enacted AEDPA against the backdrop of Keeney, adding the even “more stringent requirements” in § 2254(e)(2) for evidentiary hearings in federal habeas forums.46 These requirements apply whenever a petitioner has “failed to develop the factual basis of a claim,”47 and the majority “interpret[ed] ‘fail,’ consistent with Keeney, to mean that the [petitioner] must be ‘at fault’ for the undeveloped record in state court.”48 Moreover, Justice Thomas declined to undertake an “equitable rewrite of § 2254(e)(2) because it lacks any principled limit,” and “[u]nlike for procedural default, [the Court] lack[s] equitable authority to amend a statute to address only a subset of claims” (that is, Martinez claims).49 The Court cited the “sprawling evidentiary hearing in Jones” (seven days, at least ten witnesses) as indicative of the costs on state courts that could follow a contrary ruling.50
Thus, reasoning that “under AEDPA and our precedents, state postconviction counsel’s ineffective assistance in developing the state-court record is attributed to the [petitioner],” the Court held that Ramirez and Jones were “at fault” for failing to develop their claims51 — reversing the Ninth Circuit and denying relief.52 The Court acknowledged the irony in petitioners, under Martinez, being able to adequately allege cause for procedural default due to postconviction IAC in failing to bring trial-level IAC claims below, while being subsequently unable to develop those claims because of AEDPA’s evidentiary bar in the federal habeas forum.53 The majority responded by asserting the narrowness of Martinez,54 and it reiterated that AEDPA erects a high bar in the service of finality, comity, respect for state courts, and avoidance of “sandba[gging].”55
Justice Sotomayor dissented.56 She called the majority’s decision “perverse” and “illogical,” stating that it “all but overrules two recent precedents” — Martinez and Trevino, which are hardly a decade old.57 Despite Martinez and Trevino establishing that those who failed to raise trial-ineffectiveness claims on state habeas (given that their post-conviction counsel was ineffective in failing to do so) are not “at fault” for cause-and-prejudice purposes, they are “nonetheless at fault for the ineffective assistance of postconviction counsel in developing the evidence of trial ineffectiveness in state court.”58 So despite the double ineffectiveness of state-provided counsel, the petitioner is barred from developing the evidence required to prove her underlying claim on the merits — a result that “guts Martinez’s and Trevino’s core reasoning.”59 Justice Sotomayor argued that this result was required by “[n]either AEDPA nor this Court’s precedents,”60 which have found attorney error to constitute an external impediment in certain situations.61 These include, critically, Martinez situations — where attorney error constitutes cause specifically because the petitioner was unable to raise a trial-ineffectiveness claim on direct appeal; as a result, the petitioner’s Sixth Amendment right to counsel is violated if her state postconviction attorney negligently failed to raise this claim that could not have been brought earlier.62
Justice Sotomayor argued that neither AEDPA nor Keeney changed this fault standard: they addressed situations in which petitioners were “at fault” for failing to raise a claim — not Martinez–Trevino scenarios where petitioners were legally not at fault for the negligence of their Sixth Amendment–required counsel.63 Thus, she reasoned that Ramirez and Jones “[were] not at fault for their attorneys’ failures to develop the state-court record”64 since these failures “constituted external impediments” under Martinez-Trevino; and thus “§ 2254(e)(2), properly interpreted, poses no bar to evidentiary development in federal court.”65 She chastised the majority’s contrary reading for “eviscerat[ing] Martinez and Trevino and mischaracteriz[ing]” the Court’s precedents.66 She wrote that the Court “empt[ied] [these precedents] of all meaning” and did so by curiously “rel[ying] on the dissent[s] in Trevino” and Martinez and misconstruing precedent.67 AEDPA “str[uck] a balance between respecting state-court judgments and preserving the necessary and vital role [of] federal courts” in “promoting fundamental fairness,” especially in death penalty cases.68 The Court, in disregarding that balance, “reduce[d] to rubble many habeas petitioners’ Sixth Amendment rights to the effective assistance of counsel,” privileging finality over fundamental fairness and “extinguish[ing] the central promise of Martinez and Trevino, . . . [while] mak[ing] illusory the protections of the Sixth Amendment.”69
In Ramirez, the Roberts Court devalued stare decisis in favor of state sovereignty, curtailing the rights of vulnerable populations in the process. As the Court itself acknowledged, little remains of Martinez and Trevino after Ramirez. But the Court failed to justify its stealth overruling; rather than citing to traditional principles of stare decisis, it privileged “state sovereignty” as the cardinal policy consideration. In so doing, the Court harms indigent defendants and portends a regime whereby “states’ rights” predominate over civil rights once more.
Ramirez contravened stare decisis by “gut[ting] Martinez’s and Trevino’s core reasoning,”70 effectively overruling those decisions while reconsidering — absent special justification — the same arguments raised ten years ago in their dissents.71 To be sure, one can argue, as Justice Thomas did, that Martinez was an “equitable” ruling and that Ramirez is merely a textualist interpretation of AEDPA.72 But the language of § 2254(e)(2) existed when Martinez was decided, and Ramirez’s reading of that text renders the Martinez right an effective nullity in many cases.73 Indeed, many of the Justices in the majority acknowledged this effective end run around Martinez at oral argument: Justice Thomas addressed it in his first question, as did Chief Justice Roberts, Justice Alito, and Justice Kavanaugh.74 The Chief Justice suggested that Congress did not necessarily “envision the problem” when enacting AEDPA,75 despite the majority asserting that AEDPA compelled its holding.76 Justice Kavanaugh asserted that surely the Martinez Court foresaw this issue, and “it’s hard to envision” that the result of Ramirez “would make any sense.”77 Thus, four out of the six Justices in the majority expressly acknowledged that the logical implications of Martinez militated against the Court’s holding, yet they nonetheless joined the majority opinion. Curiously, the Chief Justice and Justice Alito did so despite being in the majority in Martinez, too; and neither penned a concurrence to explain the flip.78
Rather than adhering to stare decisis, the majority justified its holding on “state sovereignty” grounds — hardly a special factor counseling disregard for precedent. Discussions of states’ “sovereign power” have become increasingly commonplace in Roberts Court opinions.79 And policy arguments appealing to “state sovereignty” have been used to override stare decisis before.80 Nor is this the first time the Roberts Court has privileged respect for states over individuals’ fundamental, constitutional rights.81 Indeed, twice this Term, members of the Court have invoked Dred Scott v. Sandford82 to support the Court’s holdings.83 Honoring “states’ rights” here means that individuals like Jones and Ramirez, who were appointed counsel because they could not afford an attorney, are unable to vindicate their Sixth Amendment right to counsel. This rights-stripping is done in the alleged service of avoiding “disrespecting” or “overburdening” the states with a mere handful of evidentiary hearings resulting from Martinez remands, all involving state-appointed counsel for indigent defendants.84 The resurgence of the “states’ rights” narrative thus goes hand in hand with a loss of equal access to justice and fundamental rights.85
This favoring of “states’ rights” will harm indigent defendants.86 Criminal cases in the United States are disproportionately handled by public defenders, who “are chronically underfunded, poorly paid and overloaded with cases.”87 About ninety percent of capital defendants are represented by public defenders, and the danger of inadequate representation is clear.88 These limitations and risks extend beyond trials; postconviction “proceedings are woefully underfunded, and lawyers are limited in the time and resources they have to pursue . . . relief.”89 Indeed, the most common claim resulting in reversals of death sentences during postconviction proceedings is trial-level IAC.90 As a result of Ramirez, individuals lacking effective assistance at the trial stage and, subsequently, at postconviction have no way to vindicate their Sixth Amendment right to effective counsel — a right without a remedy.91
Ramirez represents the tip of the iceberg in the Roberts Court’s project of quietly undercutting stare decisis, privileging respect for “states” over settled precedents that uphold the rights and dignity of individuals. The majority reached its holding by effectively undoing settled precedent — the Martinez–Trevino framework — that this Court created just a decade ago. AEDPA’s § 2254(e)(2) language existed then, in 2012, just as it does now, in 2022. Each Justice who spoke during oral argument acknowledged this tension in one way or another; and then six voted to quash Martinez on a state-sovereignty rationale, allowing stare decisis to give way to a states’ rights narrative that has seen an all-too-comfortable resurgence in recent years. Ramirez thus continues the Roberts Court’s trend of “‘hollow[ing] out’ past precedents” without expressly overruling them.92 It displays “the [C]ourt’s newly aggressive indifference to its own legal precedent,”93 and like Dobbs v. Jackson Women’s Health Organization,94 it prioritizes the value of state sovereignty over that of stare decisis — to the detriment of individual rights. The majority’s curious regurgitation of identical arguments made in past dissents, absent special factors justifying their reconsideration, harms the Court’s legitimacy. And it exacerbates the criminalization of poverty, depriving low-income individuals — suffering ineffective representation at the hands of the state — any meaningful opportunity to vindicate their constitutional rights. In Ramirez, “states’ rights” trump civil rights once more — recent, settled precedent to the contrary notwithstanding.