SCOTUS CRIMINAL LAW UPDATE by Defense Attorney Charles Ware: Trevino v.Thaler (Federal Habeas Corpus Appeal), 569 U.S. ___ (2013)

TREVIN v. THALER, Supreme Court of the United States (SCOTUS) No. 11-10189, Decided May 28, 2013, Cert to 5th Cir. US Ct. of Appeals.
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SCOTUS rules for Texas inmate who didn’t raise claim of ineffective counsel on direct appeal:

The U.S. Supreme Court (SCOTUS) has ruled for a Texas death-row inmate, Carlos Trevino, who claimed in his federal habeas appeal that his trial counsel failed to adequately investigate and present mitigating evidence during the penalty phase of his trial.

In a 5-4 decision, the court ruled that inmate Carlos Trevino may be able to raise the mitigation issue for the first time in his federal habeas petition if his initial state habeas lawyer was ineffective [Trevino v. Thaler, 569 U.S. ___ (2013)].

Texas law permitted Trevino to claim on direct appeal that his trial lawyer was ineffective, but the claim was limited by “design and operation” of the state’s procedural system, according to the majority opinion by Justice Stephen G. Breyer.

Trevino contended in the federal habeas appeal that his trial lawyer should have presented evidence that he suffered from Fetal Alcohol Syndrome (FAS), he suffered several head injuries as a child, and he had been abused by his mother physically and emotionally.

Breyer said Trevino’s case was governed by the principle established in the 2012 case Martinez v. Ryan, 132 S.Ct. 1309 (2012), in which an inmate claimed ineffective assistance by his trial lawyer and also by the lawyer who represented him in the state collateral appeal. In that case, the Supreme Court said ineffective assistance by the appellate lawyer could excuse Martinez’s failure to raise the ineffective assistance claim, allowing a federal court to consider the issue.

In the Martinez case, state law barred inmates from raising the issue of ineffectiveness at trial on direct appeal. The difference in Texas law, which allowed the ineffectiveness issue on direct appeal, is “a distinction without a difference,” Breyer said.

Trevino’s case illustrates the difficulties of raising the ineffective assistance claim on direct appeal in Texas, Breyer wrote. “The trial court appointed new counsel for Trevino eight days after sentencing. Counsel thus had 22 days to decide whether, and on what grounds, to make a motion for a new trial. She then may have had an additional 45 days to provide support for the motion but without the help of a transcript (which did not become available until much later—seven months after the trial). It would have been difficult, perhaps impossible, within that time frame to investigate Trevino’s background, determine whether trial counsel had adequately done so, and then develop evidence about additional mitigating background circumstances.”

Justice John G. Roberts Jr. wrote a dissent joined by Justice Samuel A. Alito Jr., and Justice Antonin Scalia wrote a dissent joined by Justice Clarence Thomas. Roberts said the majority opinion is an “invitation to litigation” that will lead to “years of procedural wrangling” in states over inmates’ ability to press ineffectiveness claims on direct appeal.

[see, SCOTUSBLOG/Trevino v. Thaler; www.abajournal.com/news/article/5/29/2013]