For the Defense - Vol. 8, Issue 1 - 35

or unskilled defense attorneys, and police all too willing to cut
constitutional corners in pursuit of their private version of justice.
Those who think their own court systems do not suffer from
these afflictions are fooling themselves. As just one prominent
example, nationally between 52% to 68% of capital cases are
reversed at some point along the direct appeal or post-conviction
ladder, either as to guilt or penalty, most often because defense
counsel was found ineffective.3
our criminal trial system handles the most serious cases were not
shameful enough, in Pennsylvania the reversal rate for capital
defendants who continued to fight their cases and have received
final court decisions hovers around 90%.4
And those are cases
where trial counsel are court-certified as competent. There is
little reason to think many of the same problems do not impact
non-capital cases.
Our three-stage post-conviction process affords some measure
of protection against convictions obtained in violation of the
law. Defendants first seek relief in direct appeal proceedings
where they are limited to raising record-based claims of trial
court error. But they are precluded from raising claims that trial
counsel was ineffective or for violations of Brady v. Maryland 5
requiring further evidentiary development beyond the existing
lower court record.6
If unsuccessful on direct appeal, litigants may collaterally attack
their judgments of sentence by filing a petition under the PCRA.7
Three kinds of claims are most common in PCRA petitions. First,
petitioners allege that trial and/or direct appeal counsel were
ineffective in violation of the Sixth Amendment to the United
States Constitution. Second, they allege that the Commonwealth
unlawfully failed to disclose material exculpatory or impeaching
evidence in violation of the Fourteenth Amendment. And third,
petitioners may allege new evidence of their innocence.
Habeas proceedings typically represent our clients' final
chance to secure relief from their convictions. A state prisoner is
entitled to come into federal court to challenge that detention
on the grounds that it violates his federal constitutional rights.
The general rule, made even firmer of late, is that the habeas
litigant cannot raise new claims in federal court. Instead, she
must first exhaust her remedies by fully litigating the federal
constitutional claim in state court, giving the state court the first
bite of the apple to remedy the error. Habeas proceedings are
civil, not criminal, proceedings in which the litigant seeks an order
directing the superintendent holding the prisoner to release
her. These proceedings are governed by quasi-civil pleading and
discovery rules as well as a complex web of statutory obstacles
and legal requirements even the most experienced practitioners
find difficult to navigate.
Complexity and hurdles aside, our clients continue to win
a substantial number of habeas cases. They have seen their
sentences of death, life imprisonment or terms of years vacated;
they have eventually negotiated plea agreements that saved
them decades of their lives; and they have secured outright
dismissals. After Shinn, however, that level of success will no
longer be possible unless PCRA lawyers do what is necessary to
protect their clients' abilities to pursue habeas relief.
What PCRA Practitioners Need to Know About Habeas
In order for a habeas litigant to succeed, he must show at
If that indictment of how poorly
a minimum that he is being detained in violation of a federal
constitutional right. He must first exhaust that claim in state
court. The prisoner exhausts the claim by preserving it in the trial
court by timely objection or motion and then prosecuting that
claim on direct appeal before the Superior Court (or the Supreme
Court if the case is capital).8
If in the PCRA stage, the prisoner
must raise the claim in a timely, properly filed PCRA petition
and then litigate that claim on appeal. The prisoner must alert
the state courts that he is raising a federal constitutional claim.
Habeas courts have no power to address violations of state
constitutions or state statutes.9
In 1996, Congress greatly curtailed a prisoner's ability to prevail
in federal habeas when it passed the Anti-Terrorism and Effective
Death Penalty Act (AEDPA). No longer would the reviewing
court's focus be simply on whether the prisoner is being
detained in violation of the United States Constitution. Now,
the prisoner had the added burden to show that for any claim
adjudicated on the merits in state court the state court's decision
denying relief was contrary to or an unreasonable application
of Supreme Court precedent10
or was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding.11
The difficulties overcoming these
rigid requirements are beyond the scope of this article, but the
federal courts' adherence to AEDPA underscores their respect for
the state court process and the need for PCRA practitioners to
properly raise and exhaust their claims.
One significant case that bucked the Supreme Court's trend
toward restricting habeas is Martinez v. Ryan (2012).12
Because
there is no federal right to counsel in state post-conviction
proceedings, prisoners cannot raise claims in habeas that their
PCRA lawyers were ineffective. In Martinez, the Court gave us
a lifeline in the all-too-familiar scenario when PCRA counsel fail
to identify meritorious claims. The Supreme Court ruled that
where the habeas petitioner shows that initial PCRA counsel
was ineffective in failing to raise a substantial claim (generously
defined as one with " some merit " ), he establishes " cause " or
a justifiable reason to excuse his failure to have exhausted the
claim. The effect of Martinez was to allow our clients to raise
new claims in federal court and present evidence to support
them in what were termed " Martinez hearings. " For litigants
whose PCRA lawyers dropped the ball, Martinez was a godsend,
a major factor in vindicating our clients' Sixth Amendment rights.
But, alas, its benefits were short-lived.
Shinn v. Ramirez
It took the Supreme Court only ten years to effectively
overrule Martinez. In Shinn, the Court held that under AEDPA " a
Vol. 8, Issue 1 l For The Defense 35
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