Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Free Newsletter Sign Up

Kavanaugh Says ‘Close’ Call if Bad Lawyering Allows Hearing (1)

Dec. 8, 2021, 7:05 PMUpdated: Dec. 8, 2021, 8:36 PM

Justice Brett Kavanaugh said it’s a “close” call whether people can develop their ineffective-assistance-of-counsel claims in federal court if they failed to do so in state court because their state lawyers were ineffective.

How the Supreme Court decides the issue, argued Wednesday, could determine if the Sixth Amendment right to counsel is vindicated in cases across the country and if innocent people are incarcerated and even executed.

David Martinez Ramirez and Barry Jones were convicted of murder and sentenced to death in separate state-court cases. Arizona officials say the pair had the chance to raise ineffective-assistance-of-trial-counsel claims in state postconviction proceedings, so they’re bound by the state-court record and can’t develop new evidence on federal habeas review. The defendants point out their state postconviction lawyers were ineffective, too, so federal habeas review is the only way to develop their claims.

Several justices, including Kavanaugh and Chief Justice John Roberts, who could hold pivotal votes, cast doubt on the state’s position at the argument. Justice Amy Coney Barrett’s silence makes the outcome of the case less clear. A decision is expected by July.

Ramirez’s trial counsel failed to pursue evidence of his intellectual disability and history of being abused as a child, issues that capital juries consider in weighing aggravating and mitigating factors. He was sentenced to death for the 1989 murders of his girlfriend, Mary Ann Gortarez, and her daughter, Candie. His state postconviction lawyer didn’t address the issues either and the federal district court rejected his habeas petition. But the U.S. Court of Appeals for the Ninth Circuit reversed the district court, ordering the court to allow evidentiary development of his ineffective assistance claim.

In Jones’ case, his counsel failed to probe the state’s police work, medical evidence, and timeline in the 1994 death of four-year-old Rachel Gray. His supporters point to evidence of his innocence. Unlike in Ramirez’s case, a federal district court granted Jones’ habeas petition after holding a hearing. The state appealed and the Ninth Circuit affirmed, so the state had to retry Jones or release him. Instead, the state challenged the Ninth Circuit rulings for both Ramirez and Jones in a single petition for review, which the justices granted in May.

The outcome at the high court could hinge on how the justices resolve a potential tension between a strict law and a subsequent precedent.

The 1996 Antiterrorism and Effective Death Penalty Act bars federal habeas evidentiary hearings if a defendant “has failed to develop the factual basis of a claim in State court proceedings.” Kavanaugh told Arizona solicitor general Brunn Roysden at the argument that the lawyer has “a forceful argument on the statutory language, and I think this case is close for that reason.”

But in 2012, the Supreme Court in Martinez v. Ryan said failing to raise ineffective trial counsel claims is excused if state postconviction counsel was ineffective, too. It was a 7-2 decision by then-Justice Anthony Kennedy, joined by Roberts and Justices Samuel Alito, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and the late Justice Ruth Bader Ginsburg. Justice Clarence Thomas joined the late Justice Antonin Scalia’s dissent.

Though he dissented in Martinez, Thomas told Roysden it “seems rather odd” to grant an exception in Martinez but not let prisoners take advantage of it. Given Thomas’ voting record and other argument questions, it’s unclear if that skepticism will translate to his vote here.

But Kavanaugh and Roberts similarly scrutinized the government. Kavanaugh asked if the state’s position wouldn’t “gut” Martinez. “The idea is, if you do get the right to raise the claim for the first time, because your counsel was incompetent before, surely you have the right to get the evidence that’s necessary to support your claim,” Roberts told Roysden. At one point in the argument, Roysden said the court should just overrule Martinez, an idea that didn’t seem to gain traction.

Going the other way, Kavanaugh told Ramirez’s and Jones’ lawyer, Orrick’s Robert Loeb, that “we can’t ignore the statute.” Loeb said he’s not, and that Arizona’s position would mean that, with evidence of innocence in hand, “a federal court should just turn a blind eye to that evidence.”

The case is Shinn v. Ramirez and Jones, U.S., No. 20-1009.

(Adds reporting from argument, transcript. )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Tom P. Taylor at; Seth Stern at; John Crawley at