Supreme Court Considers Extending Right to Counsel for Challenging Trial Lawyer’s Ineffectiveness


On February 25, 2013, the United States Supreme Court heard argument in a Texas case about whether to extend the rule that allows a defendant to challenge his trial lawyer’s ineffectiveness in federal court where he is unable to do so in state court.

Last year, the Court ruled in Martinez v. Ryan that, because Arizona law bars a defendant from challenging his trial lawyer’s effectiveness during direct appeal, postconviction proceedings provide the defendant’s “one and only” chance to raise that claim, and that one chance is not a fair one if the defendant doesn’t have an effective attorney. Accordingly, the Court held that a defendant who doesn’t have an effective attorney in state postconviction proceedings can challenge his trial lawyer’s ineffectiveness for the first time in federal court.

Unlike Arizona, Texas does not formally ban prisoners from challenging trial counsel’s ineffectiveness on direct appeal. Texas law does, however, make it practically impossible for most defendants to raise such claims on direct appeal in a number of ways. For example, these claims require evidence that’s not in the trial record, but Texas law does not allow a defendant to add evidence to the record on direct appeal outside of a 30-day window after sentencing — a period that typically expires even before counsel is appointed and the trial transcript prepared.

The case is Trevino v. Thaler. If the Court decides in Trevino to extend Martinez to Texas capital cases, capital defendants in Texas (and other states that effectively preclude ineffectiveness claims on direct appeal) who do not have adequate counsel in postconviction will be allowed to challenge their trial lawyers’ effectiveness for the first time in a federal habeas petition.