Oscar Franklin Smith v. Tony Mays, Warden

In federal habeas, cases often arise where petitioners have had not only ineffective trial counsel, but also ineffective state habeas counsel—lawyers who maybe mention trial counsel’s ineffectiveness in their state habeas petition, but produce no evidence of it at all. Two lines of this Court’s precedent offer diverging guidance on whether such petitioners can ever prevail in federal court. Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 423 (2013), provide cause to excuse the default of ineffective-assistance-oftrial-counsel (IATC) claims by ineffective state habeas counsel. Yet Cullen v. Pinholster, 563 U.S. 170 (2011), forbids federal courts from expanding the record state habeas counsel created on a claim, however ineffectively. The problem, of course, is that obtaining relief under Martinez necessarily requires evidence the record lacks due to the ineffective performance of state habeas counsel—evidence Pinholster seems to bar. This tension has troubled members of this Court since Trevino was decided. In Gallow v. Cooper, 570 U.S. 933 (2013), Justices Breyer and Sotomayor flagged as appropriate for certiorari the question whether Pinholster or Martinez should govern in this situation, while noting that no circuit conflict had yet arisen on that question. Now, however, the circuits are cleanly divided three to three on this issue. The question presented is thus: Whether Martinez and Trevino apply to IATC claims that were technically raised in state habeas proceedings but went wholly unsubstantiated due to the ineffective assistance of state habeas counsel?