Davila v. Davis and Rights without Remedies

In June (of 2017), SCOTUS, in an opinion by Justice Clarence Thomas, declared that the ineffectiveness of post-conviction relief counsel (in Texas) could not serve as cause to excuse "procedural default" for the ineffectiveness of direct appellate counsel. Specifically, trial counsel had objected to a jury instruction and was overruled. The instruction was given and the defendant was convicted of capital murder. Direct appeal counsel failed to raise the issue on appeal. Subsequently, state habeas counsel neglected to raise an ineffective assistance of appellate counsel claim in the petitioner's first-time post-conviction proceeding.

Invoking Martinez v. Ryan and Trevino v. Thaler, the petitioner argued that the ineffectiveness of his post-conviction counsel should excuse the procedural default of his ineffective assistance of appellate counsel claim for purposes of federal habeas review. The Fifth Circuit Court of Appeals held that Martinez and Trevino only provided cause to excuse procedural default at to ineffective assistance of trial counsel claims. That is, only if post-conviction counsel was ineffective in failing to raise the ineffective assistance of trial counsel would cause exist to excuse procedural default in federal court. SCOTUS affirmed in a five-four decision with the "conservative" justices in the majority and the "liberal" justices in dissent.

The majority began from the premise that there is no constitutional right to post-conviction relief counsel. This, in my view, is imprecise. Certainly, there is not, under the original meaning of the Constitution, a Sixth Amendment right to counsel during post-conviction proceedings. That is because the right to counsel is for purposes of criminal prosecution and there was no right to post-conviction proceedings let alone counsel in such a proceeding. However, this ignores principals of due process. If a State provides a guarantee of post-conviction counsel in a post-conviction proceeding by statute or rule, then, in my view, there is an argument that due process guarantees the individual the right to effective counsel. Indeed, it would be a privilege of citizenship of the State to have counsel for purposes of state post-conviction proceeding if statutory law or a court rule provided for counsel.

Should the State eliminate the statutory or rule based right to counsel or entirely eliminate post-conviction proceedings, then there would not be a constitutional due process right to counsel. Nonetheless, so long as a State provides a mechanism for review of ineffectiveness claims and guarantees counsel to do so, there is an original argument for a due process right to counsel in a first time post-conviction proceeding.

What Davila means for Pennsylvania prisoners is that it is essential to have effective assistance of PCRA counsel to raise any appellate counsel (and trial counsel) ineffectiveness claims. Absent effective PCRA counsel, the right to effective direct appellate counsel would be a right without a remedy.