For the Defense - Vol. 8, Issue 1 - 36

federal habeas court may not conduct an evidentiary hearing or
otherwise consider evidence beyond the state court record based
on ineffective assistance of state post-conviction counsel. " 13
This means that the petitioner may still assert that initial postconviction
counsel was ineffective in support of a new claim, but
he may no longer present any evidence outside the existing record
to prove it. Good luck with that. In dissent, Justice Sotomayor
(joined by Justices Breyer and Kagan) called this " perverse " and
" illogical " 14
because it is next to impossible to prove that initial
post-conviction counsel performed deficiently with just evidence
from the existing state record. After all, initial post-conviction
counsel cannot allege her own ineffectiveness and then go on
to introduce evidence to prove it. The petitioner can only do
that once initial post-conviction counsel is off the case, which
is typically once he gets to federal court where, under Shinn, he
may no longer do that. Tough luck for your client: under the
agency theory that characterizes our legal system, the mistakes
of the lawyer become the client's fault.
What the Court giveth,
the Court taketh away. Now, where trial counsel's performance
deprives the accused of his constitutional right to counsel, and
PCRA counsel then fails to identify that claim, the defendant
never receives court review of that constitutional violation. With
Martinez no longer operating as a fail-safe, we need to recommit
to fully protecting our clients while they are still in state court.
What PCRA Practitioners Need To Do
Habeas is complicated and PCRA lawyers may not be at all
interested in doing that work. But the preceding discussion
teaches that an effective PCRA lawyer must be aware of the
habeas principles discussed here and comply with the following
non-exhaustive list of duties.
1. Federalize your claims.
For each PCRA claim, you must allege that the error you
identify violates the United States Constitution. This is called
" federalizing " your claims. If you do not fairly present your
federal constitutional claim to the state courts, the federal
habeas court cannot address it. If, as is typical, you allege that
trial counsel was ineffective for failing to do such-and-such, you
need to simply add the phrase " in violation of the United States
Constitution, " preferably in the heading for each claim. Cite
the specific constitutional amendment at issue and the relevant
United States Supreme Court cases to support your argument.
Do this in your amended PCRA petition and any supplemental
petitions, as well as on PCRA appeal. Be explicit, be obvious -
state courts have no duty to scour your pleadings to determine
whether you are raising a federal claim.
If direct appeal counsel raised a meritorious claim but failed to
federalize it, then you must raise a PCRA claim that direct appeal
counsel was ineffective for failing to raise the claim's federal
constitutional basis.
2. Fully investigate potential claims.
You have an independent duty to raise any claim that possesses
arguable merit. Do not rely solely on your client to advise you
which claims he thinks should be pursued. Too many PCRA lawyers
believe that they discharge their duties of zealous, competent
representation if they limit their review to the claims set forth
in the client's pro se PCRA petition and in correspondence with
their clients. Our clients often have very valuable insights into
what went wrong at their trials, and you should certainly take
their suggestions seriously. But they are not trained in the law. It
is your job to uncover potential avenues for relief. If this level of
commitment is not to your liking, then you should not be handling
PCRA cases. This requires you to obtain and review every piece of
paper connected to the case. You cannot possibly discharge your
duty of zealous representation without obtaining your client's
entire paper and electronic files from all predecessor counsel.
Those files belong to the client and not the attorney. Do not
allow former counsel to withhold documents on the inapplicable
ground that they somehow constitute work product.15
Review the Commonwealth's files (both police and District
Attorney) if available. Thoroughly investigate the criminal
records of Commonwealth witnesses to identify open cases and
crimen falsi convictions that trial counsel overlooked. Where a
witness had an open case at the time she gave her statement to
police or testified, order the transcripts from the witness's plea
or sentencing hearing or interview the witness's lawyer to see if
the Commonwealth extended benefits that were not disclosed.
Conduct Internet research on trial counsel's background (you'd
be surprised how often a simple Google search turns up leads to
inform a conflict of interest or other claim). Check your client's
criminal record: if character evidence could have been introduced
without fear of adverse impeachment and trial counsel failed to
introduce it, you've got yourself a strong claim. Pay particular
attention to the jury charge, as defective jury instructions will
catch the eye of any reviewing court and establishing prejudice
will
be
easier.
Explore alternative
defenses.
Reinterview
Commonwealth witnesses. Ask for funds to hire necessary
experts. The overall strategy to being a fine PCRA lawyer is to
think like a fine trial lawyer, ask yourself what you would have
done to defend this client, and then compare that to what trial
counsel did.
3. Gather and present all supporting evidence.
Trial lawyers have all had the experience of winning a case
because the Commonwealth failed to check the right box on
some issue. In PCRA, the roles are reversed. It's now your burden
to prove what you've alleged, and the prosecutor (and many
judges) are just waiting to pounce when you omit something.
You must be as thorough and diligent on PCRA as the law requires
of prosecutors at trial. This means that you must support your
claims with signed witness declarations, relevant records, and
other exhibits that substantiate your factual allegations. If you
36 For The Defense l Vol. 8, Issue 1
For the Defense - Vol. 8, Issue 1

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