Last week, in a 5-4 decision, the Supreme Court ordered reconsideration of the denial of federal habeas relief to a prisoner on Alabama’s death row. The defendant’s Sixth Amendment rights had been violated when he was denied access to expert assistance in developing his mitigation arguments. The conservative wing of the Court—Justice Alito, joined by Chief Justice Roberts, Justice Thomas, and Justice Gorsuch—complained the State of Alabama wasn’t given adequate notice that the case might be decided on this ground. They said this was “a most unseemly maneuver … acutely unfair to Alabama.” My reaction was that if you were looking for unseemliness and unfairness in the handling of death penalty cases, this probably was not where to start.
A week later, on the last day of the Term, the Supreme Court illustrated my point. In Davila v. Davis, the Justices against split 5-4 in a capital case, but this time they affirmed the dismissal of the defendant’s federal habeas claim. Erick Davila is on death row in Texas for a double murder committed in 2008. In 2014 he sought federal habeas relief, arguing in part that the trial judge had given the wrong instructions to the jury, over the objection of Davila’s trial counsel. The federal district court in Fort Worth rejected that argument, the Fifth Circuit concurred, and now the Supreme Court has concurred as well. What was decisive was that Davila hadn’t raised the jury instruction issue on direct appeal or when seeking state habeas relief.
It wasn’t Davila himself, of course, who had failed to raise the jury instruction argument; it was his appellate lawyer and his state habeas corpus lawyers. Davila’s federal habeas lawyers contended that this was a serious oversight. In effect, they claimed, Davila had been denied his constitutional right to effective assistance of counsel on appeal, and the violation was compounded, not excused, when his state habeas lawyers failed to complain about it.
That argument failed because a lawyer’s decision—or neglect—is imputed to the lawyer’s client, even in a case where the stakes are literally life or death. That’s a proposition the Supreme Court has insisted on in the past, and a majority of the Court insisted on it again in Davila v. Davis. The only exception is when the lawyer’s decision or neglect is so extreme that it violates of the defendant’s constitutional right to effective assistance of counsel. That takes a lot: to demonstrate ineffective assistance of counsel, the Supreme Court has said that a defendant must prove both that defense counsel’s conduct fell below “the wide range of professional competence,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Moreover, since there is no right to effective assistance of counsel at all in a state habeas proceeding—as opposed to on direct appeal—any failure to raise an argument in a state habeas petition automatically is treated as the defendant’s fault.
There’s a narrow exception to that rule, as well. If a state requires that claims of ineffective assistance of trial counsel be raised in a habeas petition, not on direct appeal, and if the claim isn’t raised at the state habeas stage because the state habeas lawyer also fails to satisfy minimal expectations of professional competence, then the defendant isn’t barred from arguing in his federal habeas petition about the adequacy of his representation at trial. In Davila v. Davis, though, a bare majority of the Supreme Court refused to apply the same rule when the defendant complains about constitutionally deficient performance of his appellate lawyer rather than his trial lawyer. The majority in Davila was comprised of the dissenters in the previous week’s capital cases, plus Justice Kennedy. Justice Thomas wrote for the Court.
The upshot is that Davila’s claim of ineffective assistance on appeal is procedurally defaulted. It cannot be pursued on federal habeas review, because it was not pursued on state habeas review. Davila’s lawyers say that the argument was not pursued on state habeas review because Davila lacked effective assistance of counsel at that stage, but the Court says, in essence, too bad: he didn’t have a right to effective assistance of counsel at stage.
But the claim now being made on Davila’s behalf isn’t that he deserves relief because he was denied effective assistance at the state habeas stage. The argument is just that if Davila lacked effective assistance of counsel on state habeas, then “his” failure to raise an argument at that stage shouldn’t bar the argument from being raised on his behalf later on. At least it shouldn’t if the federal habeas corpus proceeding is, in effect, the defendant’s first opportunity to raise the claim, given the absence of competent lawyering on his behalf at the state habeas stage. That’s pretty obviously the case when the claim has to do with the constitutional adequacy of the defendant’s representation on direct appeal. As Justice Breyer pointed out in dissent, a defendant can hardly “raise that kind of claim in the very appeal in which he claims his counsel was ineffective.” And whereas the procedures that Justice Alito found “unseemly” and “acutely unfair” to Alabama last week impeded the state’s ability to execute a defendant who appears to have long suffered from psychological impairments, the procedural rules the Court announced in Davila v. Davis may facilitate the execution of Erick Davila without a minimally adequate examination of the merits of his constitutional claims.
David Alan Sklansky is Stanley Morrison Professor of Law at Stanford Law School and a former federal prosecutor.