Davila v. Davis

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DAVILA v. DAVIS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 16–6219. Argued April 24, 2017—Decided June 26, 2017
In petitioner’s state capital murder trial, the trial court overruled coun-
sel’s objection to a proposed jury instruction and submitted the in-
struction to the jury, which convicted petitioner. Appellate counsel
did not challenge the jury instruction, and petitioner’s conviction and
sentence were affirmed. Petitioner’s state habeas counsel did not
raise the instructional issue or challenge appellate counsel’s failure
to raise it on appeal, and the state habeas court denied relief. Peti-
tioner then sought federal habeas relief. Invoking Martinez v. Ryan,
566 U.S. 1, and Trevino v. Thaler, 569 U.S. 413, petitioner argued
that his state habeas counsel’s ineffective assistance in failing to
raise an ineffective-assistance-of-appellate-counsel claim provided
cause to excuse the procedural default of that claim. The District
Court denied relief, concluding that Martinez and Trevino apply ex-
clusively to ineffective-assistance-of-trial-counsel claims. The Fifth
Circuit denied a certificate of appealability.
Held: The ineffective assistance of postconviction counsel does not pro-
vide cause to excuse the procedural default of ineffective-assistance-
of-appellate-counsel claims. Pp. 4–16.
(a) In Coleman v. Thompson, 501 U.S. 722, this Court held that at-
torney error committed in the course of state postconviction proceed-
ings—for which the Constitution does not guarantee the right to
counsel—cannot supply cause to excuse a procedural default that oc-
curs in those proceedings. Id., at 755. In Martinez, the Court an-
nounced an “equitable . . . qualification” of Coleman’s rule that ap-
plies where state law requires a claim of ineffective assistance of trial
2 DAVILA v. DAVIS
Syllabus
counsel to be raised in an “initial-review collateral proceeding,” ra-
ther than on direct appeal. 566 U.S., at 16, 17. In those situations,
“a procedural default will not bar a federal habeas court from hearing
a substantial claim of ineffective assistance at trial if” the default re-
sults from the ineffective assistance of the prisoner’s counsel in the
collateral proceeding. Id., at 17. The Court clarified in Trevino that
Martinez’s exception also applies where the State’s “procedural
framework, by reason of its design and operation, makes it unlikely
in a typical case that a defendant will have a meaningful opportunity
to raise” the claim on direct appeal. 569 U. S., at ___. Pp. 4–7.
(b) This Court declines to extend the Martinez exception to allow a
federal court to hear a substantial, but procedurally defaulted, claim
of appellate ineffectiveness when a prisoner’s state postconviction
counsel provides ineffective assistance by failing to raise it. Pp. 7–16.
(1) Martinez itself does not support extending this exception to
new categories of procedurally defaulted claims. The Martinez Court
did not purport to displace Coleman as the general rule governing
procedural default. Rather, it “qualifie[d] Coleman by recognizing a
narrow exception,” 566 U.S., at 9, and made clear that “[t]he rule of
Coleman governs in all but th[ose] limited circumstances,” id., at 16.
Applying Martinez’s highly circumscribed, equitable exception to new
categories of procedurally defaulted claims would do precisely what
this Court disclaimed in that case. P. 7.
(2) Martinez’s underlying rationale does not support extending
its exception to appellate-ineffectiveness claims. Petitioner argues
that his situation is analogous to Martinez, where the Court ex-
pressed concern that trial-ineffectiveness claims might completely
evade review. The Court in Martinez made clear, however, that it ex-
ercised its equitable discretion in view of the unique importance of
protecting a defendant’s trial rights, particularly the right to effective
assistance of trial counsel. Declining to expand Martinez to the ap-
pellate-ineffectiveness context does no more than respect that judg-
ment. Nor is petitioner’s rule required to ensure that meritorious
claims of trial error receive review by at least one state or federal
court—Martinez’s chief concern. See 566 U.S., at 10, 12. A claim of
trial error, preserved by trial counsel but not raised by counsel on
appeal, will have been addressed by the trial court. If an unpre-
served trial error was so obvious that appellate counsel was constitu-
tionally required to raise it on appeal, then trial counsel likely pro-
vided ineffective assistance by failing to raise it at trial. In that
circumstance, the prisoner likely could invoke Martinez or Coleman
to obtain review of trial counsel’s failure to object. Similarly, if the
underlying, defaulted claim of trial error was ineffective assistance of
trial counsel premised on something other than the failure to object,
Cite as: 582 U. S. ____ (2017) 3
Syllabus
then Martinez and Coleman again already provide a vehicle for ob-
taining review of that error in most circumstances. Pp. 7–11.
(3) The equitable concerns addressed in Martinez do not apply to
appellate-ineffectiveness claims. In Martinez and Trevino, the States
deliberately chose to make postconviction process the only means for
raising trial-ineffectiveness claims. The Court determined that it
would be inequitable to refuse to hear a defaulted claim when the
State had channeled that claim to a forum where the prisoner might
lack the assistance of counsel in raising it. The States have not made
a similar choice with respect to appellate-ineffectiveness claims—nor
could they, since such claims generally cannot be presented until af-
ter the termination of direct appeal. The fact that appellate-
ineffectiveness claims are considered in proceedings in which counsel
is not constitutionally guaranteed is a function of the nature of the
claim, not of the States’ deliberate choices. Pp. 11–12.
(4) The Martinez decision was also grounded in part on the belief
that its narrow exception was unlikely to impose significant systemic
costs. See 566 U.S., at 15–16. But adopting petitioner’s proposed ex-
tension could flood the federal courts with defaulted appellate-
ineffectiveness claims, and potentially serve as a gateway to federal
review of a host of defaulted claims of trial error. It would also ag-
gravate the harm to federalism that federal habeas review of state
convictions necessarily causes. Not only would these burdens on the
federal courts and federal system be severe, but the systemic benefit
would be small, as claims heard in federal court solely by virtue of
petitioner’s proposed rule would likely be largely meritless. Pp. 12–
16.
650 Fed. Appx. 860, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, ALITO, and GORSUCH, JJ., joined. BREYER, J., filed a
dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 582 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–6219
_________________
ERICK DANIEL DAVILA, PETITIONER v. LORIE DAVIS,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 26, 2017]
JUSTICE THOMAS delivered the opinion of the Court.
Federal habeas courts reviewing convictions from state
courts will not consider claims that a state court refused to
hear based on an adequate and independent state proce-
dural ground. A state prisoner may be able to overcome
this bar, however, if he can establish “cause” to excuse the
procedural default and demonstrate that he suffered
actual prejudice from the alleged error. An attorney error
does not qualify as “cause” to excuse a procedural default
unless the error amounted to constitutionally ineffective
assistance of counsel. Because a prisoner does not have a
constitutional right to counsel in state postconviction
proceedings, ineffective assistance in those proceedings
does not qualify as cause to excuse a procedural default.
See Coleman v. Thompson, 501 U.S. 722 (1991).
In Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v.
Thaler, 569 U.S. 413 (2013), this Court announced a
narrow exception to Coleman’s general rule. That excep-
tion treats ineffective assistance by a prisoner’s state
2 DAVILA v. DAVIS
Opinion of the Court
postconviction counsel as cause to overcome the default of
a single claim—ineffective assistance of trial counsel—in a
single context—where the State effectively requires a
defendant to bring that claim in state postconviction
proceedings rather than on direct appeal. The question in
this case is whether we should extend that exception to
allow federal courts to consider a different kind of defaulted
claim—ineffective assistance of appellate counsel. We
decline to do so.
I
A
On April 6, 2008, a group of family and friends gathered
at Annette Stevenson’s home to celebrate her granddaugh-
ter’s birthday. Petitioner Erick Daniel Davila, believing
he had seen a member of a rival street gang at the celebra-
tion, fired a rifle at the group while they were eating cake
and ice cream. He shot and killed Annette and her 5-year-
old granddaughter Queshawn, and he wounded three
other children and one woman.
After the police arrested petitioner, he confessed to the
killings. He stated that he “wasn’t aiming at the kids or
the woman,” but that he was trying to kill Annette’s son
(and Queshawn’s father) Jerry Stevenson and the other
“guys on the porch.” App. 38. The other “guys on the
porch” were, apparently, women.
The State indicted petitioner for capital murder under
Tex. Penal Code Ann. §19.03(a)(7)(A) (West 2016), which
makes it a capital crime to “murde[r] more than one per-
son . . . during the same criminal transaction.” In re-
sponse to the jury’s request for clarification during delib-
erations, the trial court proposed instructing the jury on
transferred intent. Under that doctrine, the jury could
find petitioner guilty of murder if it determined that he
intended to kill one person but instead killed a different
person. Petitioner’s counsel objected to the additional
Cite as: 582 U. S. ____ (2017) 3
Opinion of the Court
instruction, arguing that the trial judge should “wait” to
submit it “until the jury indicates that they can’t reach . . .
a resolution.” App. 51. The trial court overruled the
objection and submitted the instruction to the jury. The
jury convicted petitioner of capital murder, and the trial
court sentenced petitioner to death.
B
Petitioner appealed his conviction and sentence. Al-
though his appellate counsel argued that the State pre-
sented insufficient evidence to show that he acted with the
requisite intent, counsel did not challenge the instruction
about transferred intent. The Texas Court of Criminal
Appeals affirmed petitioner’s conviction and sentence.
Davila v. State, 2011 WL 303265 (Jan. 26, 2011), cert.
denied, 565 U.S. 885 (2011).
Petitioner next sought habeas relief in Texas state
court. His counsel did not challenge the instruction about
transferred intent, nor did he challenge the failure of his
appellate counsel to raise the alleged instructional error
on direct appeal. The Texas Court of Criminal Appeals
denied relief. Ex parte Davila, 2013 WL 1655549 (Apr. 17,
2013), cert. denied, 571 U. S. ___ (2013).
C
Petitioner then sought habeas relief in Federal District
Court under 28 U.S. C. §2254. As relevant here, he ar-
gued that his appellate counsel provided ineffective assis-
tance by failing to challenge the jury instruction about
transferred intent. Petitioner conceded that he had failed
to raise his claim of ineffective assistance of appellate
counsel in his state habeas petition, but argued that the
failure was the result of his state habeas counsel’s ineffec-
tive assistance. Petitioner invoked this Court’s decisions
in Martinez and Trevino to argue that his state habeas
attorney’s ineffective assistance provided cause to excuse
4 DAVILA v. DAVIS
Opinion of the Court
the procedural default of his claim of ineffective assistance
of appellate counsel.
The District Court denied petitioner’s §2254 petition. It
concluded that Martinez and Trevino did not supply cause
to excuse the procedural default of petitioner’s claim of
ineffective assistance of appellate counsel because those
decisions applied exclusively to claims of ineffective assis-
tance of trial counsel. See Davila v. Stephens, 2015 WL
1808689, *20 (ND Tex., Apr. 21, 2015). The Court of
Appeals for the Fifth Circuit denied a certificate of ap-
pealability on the same ground. 650 Fed. Appx. 860, 867–
868 (2016). Petitioner then sought a writ of certiorari,
asking us to reverse the Fifth Circuit on the ground that
Martinez and Trevino should be extended to claims of
ineffective assistance of appellate counsel. We granted
certiorari, 580 U. S. ___ (2017), and now affirm.
II
Our decision in this case is guided by two fundamental
tenets of federal review of state convictions. First, a state
prisoner must exhaust available state remedies before
presenting his claim to a federal habeas court.
§2254(b)(1)(A). The exhaustion requirement is designed to
avoid the “unseemly” result of a federal court “upset[ting]
a state court conviction without” first according the state
courts an “opportunity to . . . correct a constitutional viola-
tion,” Rose v. Lundy, 455 U.S. 509, 518 (1982) (internal
quotation marks omitted).
Second, a federal court may not review federal claims
that were procedurally defaulted in state court—that is,
claims that the state court denied based on an adequate
and independent state procedural rule. E.g., Beard v.
Kindler, 558 U.S. 53, 55 (2009). This is an important
“corollary” to the exhaustion requirement. Dretke v. Ha-
ley, 541 U.S. 386, 392 (2004). “Just as in those cases in
which a state prisoner fails to exhaust state remedies, a
Cite as: 582 U. S. ____ (2017) 5
Opinion of the Court
habeas petitioner who has failed to meet the State’s proce-
dural requirements for presenting his federal claims has
deprived the state courts of an opportunity to address” the
merits of “those claims in the first instance.” Coleman,
501 U.S., at 731–732.1 The procedural default doctrine
thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See
McCleskey v. Zant, 499 U.S. 467, 493 (1991).
A state prisoner may overcome the prohibition on re-
viewing procedurally defaulted claims if he can show
“cause” to excuse his failure to comply with the state
procedural rule and “actual prejudice resulting from the
alleged constitutional violation.” Wainwright v. Sykes, 433
U.S. 72, 84 (1977); Coleman, supra, at 750. To establish
“cause”—the element of the doctrine relevant in this
case—the prisoner must “show that some objective factor
external to the defense impeded counsel’s efforts to comply
with the State’s procedural rule.” Murray v. Carrier, 477
U.S. 478, 488 (1986). A factor is external to the defense if
it “cannot fairly be attributed to” the prisoner. Coleman,
supra, at 753.
——————
1 The Fifth Circuit treats unexhausted claims as procedurally de-
faulted if “the court to which the petitioner would be required to pre-
sent his claims in order to meet the exhaustion requirement would now
find the claims procedurally barred.” Bagwell v. Dretke, 372 F.3d 748,
755 (2004) (internal quotation marks omitted); cf. Coleman, 501 U.S.,
at 735, n. Relying on this doctrine, the District Court concluded that
petitioner’s federal claim was procedurally defaulted (even though a
state court had never actually found it procedurally barred) because
Texas law would likely bar a Texas court from deciding the claim on the
merits if petitioner were to present it in a successive habeas petition.
Davila v. Stephens, 2015 WL 1808689, *19–*20 (ND Tex., Apr. 21,
2015) (citing Davila v. Stephens, 2014 WL 5879879, *2 (ND Tex., Nov.
10, 2014)); see also Davila v. Stephens, 2014 WL 6057907, *2 (ND Tex.,
Nov. 10, 2014). Petitioner did not seek a certificate of appealability
regarding that holding, and neither petitioner nor the State disputes in
this Court that the claim was procedurally defaulted. Accordingly, we
assume that it was procedurally defaulted for purposes of this case.
6 DAVILA v. DAVIS
Opinion of the Court
It has long been the rule that attorney error is an objec-
tive external factor providing cause for excusing a proce-
dural default only if that error amounted to a deprivation
of the constitutional right to counsel. See Edwards v.
Carpenter, 529 U.S. 446, 451 (2000). An error amounting
to constitutionally ineffective assistance is “imputed to the
State” and is therefore external to the prisoner. Murray,
supra, at 488. Attorney error that does not violate the
Constitution, however, is attributed to the prisoner “under
well-settled principles of agency law.” Coleman, supra, at
754. It follows, then, that in proceedings for which the
Constitution does not guarantee the assistance of counsel
at all, attorney error cannot provide cause to excuse a
default. Thus, in Coleman, this Court held that attorney
error committed in the course of state postconviction
proceedings—for which the Constitution does not guaran-
tee the right to counsel, see Murray v. Giarratano, 492
U.S. 1 (1989) (plurality opinion)—cannot supply cause to
excuse a procedural default that occurs in those proceed-
ings. 501 U.S., at 755.
In Martinez, this Court announced a narrow, “equitable
. . . qualification” of the rule in Coleman that applies
where state law requires prisoners to raise claims of inef-
fective assistance of trial counsel “in an initial-review
collateral proceeding,” rather than on direct appeal. Mar-
tinez, 566 U.S., at 16, 17. It held that, in those situations,
“a procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance
at trial if ” the default results from the ineffective assis-
tance of the prisoner’s counsel in the collateral proceeding.
Id., at 17. In Trevino, the Court clarified that this excep-
tion applies both where state law explicitly prohibits
prisoners from bringing claims of ineffective assistance of
trial counsel on direct appeal and where the State’s “pro-
cedural framework, by reason of its design and operation,
makes it unlikely in a typical case that a defendant will
Cite as: 582 U. S. ____ (2017) 7
Opinion of the Court
have a meaningful opportunity to raise” that claim on
direct appeal. 569 U. S., at ___ (slip op., at 14).
III
Petitioner asks us to extend Martinez to allow a federal
court to hear a substantial, but procedurally defaulted,
claim of ineffective assistance of appellate counsel when a
prisoner’s state postconviction counsel provides ineffective
assistance by failing to raise that claim. We decline to do
so.
A
On its face, Martinez provides no support for extending
its narrow exception to new categories of procedurally
defaulted claims. Martinez did not purport to displace
Coleman as the general rule governing procedural default.
Rather, it “qualifie[d] Coleman by recognizing a narrow
exception” that applies only to claims of “ineffective assis-
tance of counsel at trial” and only when, “under state law,”
those claims “must be raised in an initial-review collateral
proceeding.” Martinez, supra, at 9, 17. And Trevino merely
clarified that the exception applies whether state law
explicitly or effectively forecloses review of the claim on
direct appeal. 569 U. S., at ___ (slip op. at 2, 13). In all
but those “limited circumstances,” Martinez made clear
that “[t]he rule of Coleman governs.” 566 U.S., at 16.
Applying Martinez’s highly circumscribed, equitable ex-
ception to new categories of procedurally defaulted claims
would thus do precisely what this Court disclaimed in
Martinez: Replace the rule of Coleman with the exception
of Martinez.
B
Petitioner also finds no support in the underlying ra-
tionale of Martinez. Petitioner’s primary argument is that
his claim of ineffective assistance of appellate counsel
might never be reviewed by any court, state or federal,
8 DAVILA v. DAVIS
Opinion of the Court
without expanding the exception to the rule in Coleman.
He argues that this situation is analogous to Martinez,
where the Court expressed that same concern about
claims of ineffective assistance of trial counsel. But the
Court in Martinez was principally concerned about trial
errors—in particular, claims of ineffective assistance of
trial counsel. Ineffective assistance of appellate counsel is
not a trial error. Nor is petitioner’s rule necessary to
ensure that a meritorious trial error (of any kind) receives
review.
1
Petitioner argues that allowing a claim of ineffective
assistance of appellate counsel to evade review is just as
concerning as allowing a claim of ineffective assistance of
trial counsel to evade review. Brief for Petitioner 12; see
also id., at 18–26. We do not agree.
The criminal trial enjoys pride of place in our criminal
justice system in a way that an appeal from that trial does
not. The Constitution twice guarantees the right to a
criminal trial, see Art. III, §2; Amdt. 6, but does not guar-
antee the right to an appeal at all, Halbert v. Michigan,
545 U.S. 605, 610 (2005). The trial “is the main event at
which a defendant’s rights are to be determined,” McFar-
land v. Scott, 512 U.S. 849, 859 (1994) (internal quotation
marks omitted), “and not simply a tryout on the road to
appellate review,” Freytag v. Commissioner, 501 U.S. 868,
895 (1991) (Scalia, J., concurring in part and concurring in
judgment) (internal quotation marks omitted). And it is
where the stakes for the defendant are highest, not least
because it is where a presumptively innocent defendant is
adjudged guilty, see Ross v. Moffitt, 417 U.S. 600, 610
(1974); Wainwright, 433 U.S., at 90, and where the trial
judge or jury makes factual findings that nearly always
receive deference on appeal and collateral review, see
Jackson v. Virginia, 443 U.S. 307, 318–319 (1979); see
Cite as: 582 U. S. ____ (2017) 9
Opinion of the Court
also Cavazos v. Smith, 565 U.S. 1, 2 (2011) ( per curiam)
(under deferential standard of review, “judges will some-
times encounter convictions that they believe to be mis-
taken, but that they must nevertheless uphold”).
The Court in Martinez made clear that it exercised its
equitable discretion in view of the unique importance of
protecting a defendant’s trial rights, particularly the right
to effective assistance of trial counsel. As the Court ex-
plained, “the limited nature” of its holding “reflect[ed] the
importance of the right to the effective assistance of trial
counsel,” which is “a bedrock principle in our justice sys-
tem.” 566 U.S., at 12, 16 (emphasis added). In declining
to expand the Martinez exception to the distinct context of
ineffective assistance of appellate counsel, we do no more
than respect that judgment.
2
Petitioner’s rule also is not required to ensure that
meritorious claims of trial error receive review by at least
one state or federal court—the chief concern identified by
this Court in Martinez. See id., at 10, 12. Martinez was
concerned that a claim of trial error—specifically, ineffec-
tive assistance of trial counsel—might escape review in a
State that required prisoners to bring the claim for the
first time in state postconviction proceedings rather than
on direct appeal. Because it is difficult to assess a trial
attorney’s performance until the trial has ended, a trial
court ordinarily will not have the opportunity to rule on
such a claim. And when the State requires a prisoner to
wait until postconviction proceedings to raise the claim,
the appellate court on direct appeal also will not have the
opportunity to review it. If postconviction counsel then
fails to raise the claim, no state court will ever review it.
Finally, because attorney error in a state postconviction
proceeding does not qualify as cause to excuse procedural
default under Coleman, no federal court could consider the
10 DAVILA v. DAVIS
Opinion of the Court
claim either.
Claims of ineffective assistance of appellate counsel,
however, do not pose the same risk that a trial error—of
any kind—will escape review altogether, at least in a way
that could be remedied by petitioner’s proposed rule. This
is true regardless of whether trial counsel preserved the
alleged error at trial. If trial counsel preserved the error
by properly objecting, then that claim of trial error “will
have been addressed by . . . the trial court.” Martinez, 566
U.S., at 11. A claim of appellate ineffectiveness premised
on a preserved trial error thus does not present the same
concern that animated the Martinez exception because at
least “one court” will have considered the claim on the
merits. Ibid.; see also Coleman, 501 U.S., at 755–756.
If trial counsel failed to preserve the error at trial, then
petitioner’s proposed rule ordinarily would not give the
prisoner access to federal review of the error, anyway.
Effective appellate counsel should not raise every nonfriv-
olous argument on appeal, but rather only those argu-
ments most likely to succeed. Smith v. Murray, 477 U.S.
527, 536 (1986); Jones v. Barnes, 463 U.S. 745, 751–753
(1983). Declining to raise a claim on appeal, therefore, is
not deficient performance unless that claim was plainly
stronger than those actually presented to the appellate
court. See Smith v. Robbins, 528 U.S. 259, 288 (2000). In
most cases, an unpreserved trial error will not be a plainly
stronger ground for appeal than preserved errors. See 2
B. Means, Postconviction Remedies §35:19, p. 627, and
n. 16 (2016). Thus, in most instances in which the trial
court did not rule on the alleged trial error (because it was
not preserved), the prisoner could not make out a substan-
tial claim of ineffective assistance of appellate counsel and
therefore could not avail himself of petitioner’s expanded
Martinez exception.
Adopting petitioner’s proposed rule would be unneces-
sary to ensure review of a claim of trial error even when a
Cite as: 582 U. S. ____ (2017) 11
Opinion of the Court
prisoner has a legitimate claim of ineffective assistance of
appellate counsel based on something other than a pre-
served trial error. If an unpreserved trial error was so
obvious that appellate counsel was constitutionally re-
quired to raise it on appeal, then trial counsel likely pro-
vided ineffective assistance by failing to object to it in the
first instance. In that circumstance, the prisoner likely
could invoke Martinez or Coleman to obtain review of trial
counsel’s failure to object. Similarly, if the underlying,
defaulted claim of trial error was ineffective assistance of
trial counsel premised on something other than the failure
to object, then Martinez and Coleman again already pro-
vide a vehicle for obtaining review of that error in most
circumstances. Petitioner’s proposed rule is thus unneces-
sary for ensuring that trial errors are reviewed by at least
one court.
C
The Court in Martinez also was responding to an equi-
table consideration that is unique to claims of ineffective
assistance of trial counsel and accordingly inapplicable to
claims of ineffective assistance of appellate counsel. In
Martinez, the State “deliberately cho[se] to move trial-
ineffectiveness claims outside of the direct-appeal process,
where counsel is constitutionally guaranteed,” into the
postconviction review process, where we have never held
that the Constitution guarantees a right to counsel. 566
U.S., at 13; id., at 9. By doing so, “the State significantly
diminishe[d] prisoners’ ability to file such claims.” Id., at
13. Similarly, in Trevino, the State had chosen a proce-
dural framework pursuant to which collateral review was,
“as a practical matter, the onl[y] method for raising an
ineffective-assistance-of-trial-counsel claim.” 569 U. S., at
___ (slip op., at 13).
Although this Court acknowledged in Martinez that
there was nothing inappropriate about the State’s choice,
12 DAVILA v. DAVIS
Opinion of the Court
it explained that the choice was “not without consequences
for the State’s ability to assert a procedural default” in
subsequent federal habeas proceedings. 566 U.S., at 13.
Specifically, the Court concluded that it would be inequi-
table to refuse to hear a defaulted claim of ineffective
assistance of trial counsel when the State had channeled
that claim to a forum where the prisoner might lack the
assistance of counsel in raising it.
The States have not made a similar choice with respect
to claims of ineffective assistance of appellate counsel—
nor could they. By their very nature, such claims gener-
ally cannot be presented until after the termination of direct
appeal. Put another way, they necessarily must be heard
in collateral proceedings, where counsel is not constitu-
tionally guaranteed. The fact that claims of appellate
ineffectiveness are considered in proceedings in which
counsel is not constitutionally guaranteed is a function of
the nature of the claim, not of the State’s “deliberat[e]
cho[ice] to move . . . claims outside of the direct-appeal
process.” Ibid. The equitable concerns raised in Martinez
therefore do not apply.
D
Finally, the Court in Martinez grounded its decision in
part on the belief that its narrow exception was unlikely to
impose significant systemic costs. See id., at 15–16. The
same cannot be said of petitioner’s proposed extension.
1
Adopting petitioner’s argument could flood the federal
courts with defaulted claims of appellate ineffectiveness.
For one thing, every prisoner in the country could bring
these claims. Martinez currently applies only to States
that deliberately choose to channel claims of ineffective
assistance of trial counsel into collateral proceedings. See,
e.g., Lee v. Corsini, 777 F.3d 46, 60–61 (CA1 2015) (Mar-
Cite as: 582 U. S. ____ (2017) 13
Opinion of the Court
tinez and Trevino do not apply to Massachusetts); Henness
v. Bagley, 766 F.3d 550, 557 (CA6 2014) (Martinez does
not apply to Ohio). If we applied Martinez to claims of
appellate ineffectiveness, however, we would bring every
State within Martinez’s ambit, because claims of appellate
ineffectiveness necessarily must be heard in collateral
proceedings. See supra, at 12.
Extending Martinez to defaulted claims of ineffective
assistance of appellate counsel would be especially trouble-
some because those claims could serve as the gateway
to federal review of a host of trial errors, while Martinez
covers only one trial error (ineffective assistance of trial
counsel). If a prisoner can establish ineffective assistance
of trial counsel under Martinez, he ordinarily is entitled to
a new trial. See United States v. Morrison, 449 U.S. 361,
364–365 (1981); see also Hagens v. State, 979 S.W.2d
788, 792 (Tex. App. 1998). But if he cannot, Martinez
provides no avenue for litigating other defaulted trial
errors.2
An expanded Martinez exception, however, would mean
that any defaulted trial error could result in a new trial.
In Carpenter, this Court held that, when a prisoner can
show cause to excuse a defaulted claim of ineffective assis-
tance of appellate counsel, he can in turn rely on that
claim as cause to litigate an underlying claim of trial error
that was defaulted due to appellate counsel’s ineffective-
ness. 529 U.S., at 453. Expanding Martinez as petitioner
——————
2 The dissent argues that Martinez already provides a gateway to the
review of underlying trial errors no differently than would petitioner’s
proposed rule. See post, at 7 (opinion of BREYER, J.). That is not so. If
a prisoner succeeds on his claim of ineffective assistance of trial counsel
under Martinez, the federal habeas court would not need to consider
any other claim of trial error since the successful claim of trial ineffec-
tiveness—unlike a successful claim of ineffective assistance of appellate
counsel—entitles the prisoner to a new trial. See 7 W. LaFave, J.
Israel, N. King, & O. Kerr, Criminal Procedure §28.4(d), p. 258, n. 75
(4th ed. 2015).
14 DAVILA v. DAVIS
Opinion of the Court
suggests would thus produce a domino effect: Prisoners
could assert their postconviction counsel’s inadequacy as
cause to excuse the default of their appellate ineffective-
ness claims, and use those newly reviewable appellate
ineffectiveness claims as cause to excuse the default of
their underlying claims of trial error. Petitioner’s rule
thus could ultimately knock down the procedural barriers
to federal habeas review of nearly any defaulted claim of
trial error. The scope of that review would exceed any-
thing the Martinez Court envisioned when it established
its narrow exception to Coleman.
Petitioner insists that these concerns are overstated
because many of the newly raised claims will be meritless.
See Brief for Petitioner 28. But even if that were true,
courts would still have to undertake the task of separating
the wheat from the chaff. And we are not reassured by
petitioner’s suggestion that extending Martinez would
increase only the number of claims in each petition rather
than the number of federal habeas petitions themselves.
Reply Brief 14. Each additional claim would require the
district court to review the prisoner’s trial record, appel-
late briefing, and state postconviction record to determine
the claim’s viability. This effort could be repeated at each
level of federal review. We cannot “assume that these
costs would be negligible,” Murray, 477 U.S., at 487, and
we are loath to further “burden . . . scarce federal judicial
resources” in this way, McCleskey, 499 U.S., at 491.
2
Expanding Martinez would not only impose significant
costs on the federal courts, but would also aggravate the
harm to federalism that federal habeas review necessarily
causes. Federal habeas review of state convictions “entails
significant costs,” Engle v. Isaac, 456 U.S. 107, 126
(1982), “ ‘and intrudes on state sovereignty to a degree
matched by few exercises of federal judicial authority,’ ”
Cite as: 582 U. S. ____ (2017) 15
Opinion of the Court
Harrington v. Richter, 562 U.S. 86, 103 (2011) (quoting
Harris v. Reed, 489 U.S. 255, 282 (1989) (KENNEDY, J.,
dissenting)). It “frustrates both the States’ sovereign
power to punish offenders and their good-faith attempts to
honor constitutional rights.” Calderon v. Thompson, 523
U.S. 538, 555–556 (1998) (internal quotation marks omit-
ted). It “degrades the prominence of the [State] trial,”
Engle, supra, at 127, and it “disturbs the State’s signifi-
cant interest in repose for concluded litigation [and] denies
society the right to punish some admitted offenders,”
Harrington, supra, at 103 (internal quotation marks
omitted).
Apart from increasing the sheer frequency of federal
intrusion into state criminal affairs, petitioner’s proposed
rule would also undermine the doctrine of procedural
default and the values it serves. That doctrine, like the
federal habeas statute generally, is designed to ameliorate
the injuries to state sovereignty that federal habeas re-
view necessarily inflicts by giving state courts the first
opportunity to address challenges to convictions in state
court, thereby “promoting comity, finality, and federal-
ism.” Cullen v. Pinholster, 563 U.S. 170, 185 (2011);
McCleskey, supra, at 493. Expanding the narrow excep-
tion announced in Martinez would unduly aggravate the
“special costs on our federal system” that federal habeas
review already imposes. Engle, supra, at 128.
3
Not only would these burdens on the federal courts and
our federal system be severe, but the benefit would—as a
systemic matter—be small. To be sure, permitting a state
prisoner to bring a meritorious constitutional claim that
could not otherwise be heard is beneficial to that prisoner.
Petitioner’s counsel concedes, however, that relief is
granted in, “[i]f any, a very minute number” of “post-
conviction ineffective assistance of appellate counsel
16 DAVILA v. DAVIS
Opinion of the Court
cases.” Tr. of Oral Arg. 14. Indeed, he concedes that the
number of meritorious cases is “infinitesimally small.”
Ibid. We think it is likely that the claims heard in federal
court because of petitioner’s proposed rule would also be
largely meritless, given that the proposed rule would
generally affect only those cases in which the trial court
already adjudicated, and rejected, the prisoner’s argument
regarding the alleged underlying trial error. See supra, at
11. Given that petitioner’s proposed rule would likely
generate high systemic costs and low systemic benefits,
and that the unique concerns of Martinez are not implicated
in cases like his, we do not think equity requires an
expansion of Martinez.
* * *
For the foregoing reasons, we affirm the judgment of the
Court of Appeals.
It is so ordered.
Cite as: 582 U. S. ____ (2017) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–6219
_________________
ERICK DANIEL DAVILA, PETITIONER v. LORIE DAVIS,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 26, 2017]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
As the Court explains, normally a federal habeas court
cannot hear a state prisoner’s claim that his trial lawyer
was, constitutionally speaking, “ineffective” if the prisoner
failed to assert that claim in state court at the appropriate
time, that is, if he procedurally defaulted the claim. See
ante, at 1 (the prisoner’s failure to raise his federal claim
at the initial-review state collateral proceeding amounts to
an “adequate and independent state procedural ground”
for denying habeas relief).
But there are equitable exceptions. In Martinez v.
Ryan, 566 U.S. 1 (2012), and later in Trevino v. Thaler,
569 U.S. 413 (2013), we held that, despite the presence of
a procedural default, a federal court can nonetheless hear
a prisoner’s claim that his trial counsel was ineffective,
where (1) the framework of state procedural law “makes it
highly unlikely in a typical case that a defendant will have
a meaningful opportunity to raise a claim of ineffective
assistance of trial counsel on direct appeal,” id., at 429; (2)
in the state “ ‘initial-review collateral proceeding, there
was no counsel or counsel in that proceeding was ineffec-
tive,’ ” ibid. (quoting Martinez, 566 U. S., at 17); and (3)
2 DAVILA v. DAVIS
BREYER, J., dissenting
“the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit,” id.,
at 14.
In my view, this same exception (with the same qualifi-
cations) should apply when a prisoner raises a constitu-
tional claim of ineffective assistance of appellate counsel.
See, e.g., Evitts v. Lucey, 469 U.S. 387, 396 (1985) (Consti-
tution guarantees a defendant an effective appellate coun-
sel, just as it guarantees a defendant an effective trial
counsel).
I
Two simple examples help make clear why I believe
Martinez and Trevino should govern the outcome of this
case.
Example One: Ineffective assistance of trial counsel. The
prisoner claims that his trial lawyer was ineffective, say,
because counsel failed to object to an obviously unfair jury
selection, failed to point out that the prosecution had
promised numerous benefits to its main witness in return
for the witness’ testimony, or failed to object to an errone-
ous jury instruction that made conviction and imposition
of the death penalty far more likely. Next suppose the
prisoner appeals but, per state law, may not bring his
ineffective-assistance claim until collateral review in state
court (i.e., state habeas corpus), where the prisoner will
have a better opportunity to develop his claim and the
attorney will be better able to explain his (perhaps strate-
gic) reasons for his actions at trial. Suppose that, on
collateral review, the prisoner fails to bring up his ineffec-
tive-assistance claim, perhaps because he is no longer
represented by counsel or because his counsel there is
ineffective. Under these circumstances, if his ineffective-
assistance claim is a “substantial” one, i.e., it has “some
merit,” then Martinez and Trevino hold that a federal
Cite as: 582 U. S. ____ (2017) 3
BREYER, J., dissenting
court can hear the claim even though the state habeas
court did not consider it. See Trevino, supra, at 429; Mar-
tinez, supra, at 14. The fact that the prisoner had no
lawyer in the initial state habeas proceeding (or his lawyer
in that proceeding was ineffective) constitutes grounds for
excusing the procedural default.
Example Two: Ineffective assistance of appellate counsel.
Now suppose that a prisoner claims that the trial court
made an important error of law, say, improperly instruct-
ing the jury, or that the prosecution engaged in miscon-
duct. He believes his lawyer on direct appeal should have
raised those errors because they led to his conviction or (as
here) a death sentence. The appellate lawyer’s failure to
do so, the prisoner might claim, amounts to ineffective
assistance of appellate counsel. The prisoner cannot make
this argument on direct appeal, for the direct appeal is the
very proceeding in which he is represented by the lawyer
he says was ineffective. Next suppose the prisoner fails to
raise his appellate lawyer’s ineffectiveness at the initial
state habeas proceeding, either because he was not repre-
sented by counsel in that proceeding or because his coun-
sel there also was ineffective. When he brings his case to
the federal habeas court, the State contends that the
prisoner’s failure to present his claim during the initial
state habeas proceeding constitutes a procedural default
that precludes federal review of his claim.
Given Martinez and Trevino, the prisoner in the first
example who complains about his trial counsel can over-
come the procedural default but, in the Court’s view today,
the prisoner in the second example who complains about
his appellate counsel cannot. Why should the law treat
the second prisoner differently? Why should the Court not
apply the rules of Martinez and Trevino to claims of inef-
fective assistance of both trial and appellate counsel?
4 DAVILA v. DAVIS
BREYER, J., dissenting
II
As I have said, the Constitution applies similarly to both
prisoners: It guarantees them effective assistance of coun-
sel at both trial and during an initial appeal. See Strick-
land v. Washington, 466 U.S. 668, 686 (1984) (trial);
Evitts, supra, at 396 (appeal). Moreover, the reasoning of
Martinez and Trevino applies similarly to both situations.
Four features of the claim of ineffective assistance of
trial counsel led the Martinez Court to its conclusion.
Each equally applies here. First, the Court stressed the
importance of the underlying constitutional right to effec-
tive assistance of trial counsel, describing it as “a bedrock
principle in our justice system.” 566 U.S., at 12. Our
cases make clear that the constitutional right to effective
assistance of appellate counsel is also critically important.
The Court wrote in Douglas v. California, 372 U.S. 353,
357 (1963), that “where the merits of the one and only
appeal . . . as of right are decided without benefit of coun-
sel, we think an unconstitutional line has been drawn
between rich and poor.” The Court held in Evitts that “[a]
first appeal as of right . . . is not adjudicated in accord
with due process of law if the appellant does not have the
effective assistance of an attorney.” 469 U.S., at 396. The
Court added that “the promise of Gideon [v. Wainwright,
372 U.S. 335 (1963),] that a criminal defendant has a
right to counsel at trial . . . would be a futile gesture un-
less it comprehended the right to the effective assistance
of counsel” “on appeal.” Id., at 397. And we stated in
Martinez itself that “if the attorney appointed by the State
to pursue the direct appeal is ineffective, the prisoner has
been denied fair process.” 566 U.S., at 11 (citing Coleman
v. Thompson, 501 U.S. 722, 754 (1991); Evitts, supra, at
396; Douglas, supra, at 357–358). The fact that, according
to Department of Justice statistics, nearly a third of con-
victions or sentences in capital cases are overturned at
some stage of review suggests the practical importance of
Cite as: 582 U. S. ____ (2017) 5
BREYER, J., dissenting
the appeal right, particularly in a capital case such as this
one. See Dept. of Justice, Bureau of Justice Statistics,
Capital Punishment, 2013–Statistical Tables, p. 19, (rev.
Dec. 2014) (Table 16); see also Brief for National Associa-
tion of Criminal Defense Lawyers et al. as Amici Curiae
10.
Second, we pointed out in Martinez that the “initial”
state collateral review proceeding “is the first designated
proceeding for a prisoner to raise a claim of ineffective
assistance at trial.” 566 U.S., at 11. We added that it “is
in many ways the equivalent of a prisoner’s direct appeal
as to the ineffective-assistance claim.” Ibid. In Trevino,
we applied Martinez despite the theoretical possibility
that a prisoner might raise an ineffective-assistance-of-
trial-counsel claim on direct appeal. We wrote that the
State’s procedural system denied prisoners a “meaningful
opportunity” to bring ineffective-assistance claims on
appeal; in effect, it required them to raise the claim for the
first time in state collateral review proceedings. 569 U.S.,
at 429.
This consideration applies a fortiori where the constitu-
tional claim at issue is ineffective assistance of appellate
counsel. The prisoner cannot raise that kind of claim in
the very appeal in which he claims his counsel was ineffec-
tive. See Ha Van Nguyen v. Curry, 736 F.3d 1287, 1294–
1295 (CA9 2013). It makes no difference that the nature
of the claim, rather than the State’s express rule, makes
that so. See Trevino, supra, at 429 (extending Martinez
where the “state procedural framework, by reason of its
design and operation, makes it highly unlikely in a typical
case that a defendant will have a meaningful opportunity
to raise” the claim on direct appeal); Trevino, supra, at 424
(referring to “the inherent nature of most ineffective assis-
tance of trial counsel claims ” (emphasis added; internal
quotation marks omitted)); see also Martinez, 566 U.S., at
19–20, n. 1 (Scalia, J., dissenting) (There is no “relevant
6 DAVILA v. DAVIS
BREYER, J., dissenting
difference between cases in which the State says that
certain claims can only be brought on collateral review
and cases in which those claims by their nature can only
be brought on collateral review”).
Third, Martinez pointed out that, unless “counsel’s
errors in an initial-review collateral proceeding . . . estab-
lish cause to excuse the procedural default in a federal
habeas proceeding, no court will review the prisoner’s
claims.” Id., at 10–11 (majority opinion). The same is true
when the prisoner claims ineffective assistance of appel-
late counsel.
The Court argues to the contrary. It says that at least
one court—namely, the trial court—will have considered
the underlying legal error. Ante, at 11. (If not, perhaps
trial counsel was ineffective.) But I believe the Court here
misses the point. The prisoner’s complaint is about the
ineffectiveness of his appellate counsel. That ineffective-
ness could consist, for example, in counsel’s failure to
appeal 10 different erroneous decisions of the trial court.
The fact that the trial court made those decisions (assum-
ing they are erroneous) does not help the prisoner. To the
contrary, it forms the basis of his ineffectiveness claim. In
the absence of a Martinez-like rule, the prisoner here (and
prisoners in similar cases) would receive no review of their
ineffective-assistance claims. Moreover, there will be
cases in which no court will consider the underlying trial
error, either. Suppose that, during the pendency of the
appeal, appellate counsel learns of a Brady violation, juror
misconduct, judicial bias, or some similar violation whose
basis was not known during the trial. See Brady v. Mary-
land, 373 U.S. 83 (1963). And suppose appellate counsel
fails to pursue the claim in the manner prescribed by state
law. Without the exception petitioner here seeks, no court
will hear either the appellate-ineffective-assistance claim
or the underlying Brady, misconduct, or bias claim.
Fourth, the Martinez Court believed that its decision
Cite as: 582 U. S. ____ (2017) 7
BREYER, J., dissenting
would “not . . . put a significant strain on state resources.”
566 U.S., at 15. That is because Martinez imposed limit-
ing conditions: It excuses only those defaults that (1) occur
at the initial-review collateral proceeding; (2) where pris-
oner had no counsel, or ineffective counsel, in that pro-
ceeding; and (3) where the underlying claim of ineffective
assistance is “substantial,” i.e., has “some merit.” Id., at
14–16. Moreover, as the Court pointed out, because many
States provide prisoners with counsel in initial-review
collateral proceedings (or at least when the prisoner seems
to have a meritorious claim), it is unlikely that prisoners
will default substantial ineffective-assistance claims. See
id., at 14–15 (providing examples). Finally, there is no
evidence before us that Martinez has produced a greater-
than-expected increase in courts’ workload, even though
Martinez applies, as Texas concedes, “in most States.” Tr.
of Oral Arg. 38.
It therefore seems unlikely that applying Martinez to
ineffective-assistance-of-appellate-counsel claims will “put
a significant strain on” state or federal resources. As I
have said, the same limitations as the Court placed upon
the assertion of a Martinez claim would apply here. And
the Court’s fear of triggering federal second-guessing of
many, if not all, trial errors is of no greater concern here
than it was in Martinez, for both trial- and appellate-level
ineffectiveness claims “could serve as the gateway to
federal review of a host of trial errors.” Ante, at 13. Given
a natural judicial hesitation to second-guess counsels’
decisions, it is not surprising that we have no significant
evidence of defaulted claims of ineffective assistance with
“some merit” flooding the federal courts, either in respect
to trial counsel (as in Martinez) or in respect to appellate
counsel (as here). See Strickland, 466 U.S., at 690–691
(To prevail on an ineffective-assistance claim, the defend-
ant must show that his attorney’s actions “were outside
the wide range of professionally competent assistance,”
8 DAVILA v. DAVIS
BREYER, J., dissenting
rather than strategic decisions to which the court
must defer, and that those actions had an “effect on the
judgment”).
In fact, Texas has supplied some empirical evidence, but
that evidence suggests that courts can manage a Martinez
exception expanded to include claims of ineffective assis-
tance of appellate counsel. Texas says that in the Ninth
Circuit, which has applied Martinez to ineffective-
assistance-of-appellate-counsel claims since late 2013,
petitioners have used the expanded version of Martinez “in
dozens” of federal habeas cases. Brief for Respondent 37.
(Texas specifically refers to 10 cases, in only 1 of which the
petitioner prevailed. Ibid., n. 13.) During that period,
state prisoners filed at least 7,500 federal habeas petitions
in the Ninth Circuit. See Ninth Circuit Ann. Rep. 71
(2015) (2,468 cases referred to magistrate judges in 2014;
2,693 in 2015). Hence, Texas’ estimate of added workload
comes down to an increase of “dozens” of cases out of 7,500
cases in total. That figure represents an increase, but not
an increase significant enough to warrant depriving a
prisoner of any forum to adjudicate a substantial claim
that he was deprived of his constitutional right to effective
assistance of appellate counsel.
III
In my view, the Court’s effort to distinguish Martinez
comes down to the following points: (1) Martinez concerned
only claims of ineffective trial counsel; (2) Martinez in-
volved trial errors that, at least sometimes, would have
escaped review, while here at least one court (the trial
court) may have reviewed the underlying legal error; (3)
Martinez involved cases in which the State itself pre-
vented its appellate courts from reviewing the claim of trial
counsel’s ineffectiveness, whereas here it is the nature of
the ineffectiveness claim that prevents the appellate
courts from reviewing it; and (4) extending Martinez could
Cite as: 582 U. S. ____ (2017) 9
BREYER, J., dissenting
flood the federal system with normally meritless claims.
I have explained why I believe the last mentioned em-
pirical prediction does not distinguish Martinez and why,
in any event, it is unlikely to prove correct. See supra, at
7–8. And I have explained why the second and third
points do not successfully distinguish Martinez. The
second fails to focus on the relevant claim: ineffective
assistance of counsel. See supra, at 6. And it fails to
acknowledge that there may be cases in which the trial
court will not have considered the legal error underlying
the ineffective-assistance claim. Ibid. The third has little
to do with the matter. It overlooks the fact that there is
no “relevant difference” between cases in which the State
requires that certain claims be brought only on collateral
review and “cases in which those claims by their nature
can only be brought on collateral review,” such as claims of
ineffective assistance of appellate counsel. See supra, at
5–6 (quoting Martinez, 566 U.S., at 19–20, n. 1 (Scalia, J.,
dissenting)). In both cases, the State’s scheme deprives a
prisoner from having his substantial constitutional claim
heard, through no fault of his own.
As to the first point, the Court is of course right. Mar-
tinez had to do only with the ineffectiveness of trial coun-
sel. But our cases make clear that due process requires a
criminal defendant to have effective assistance of appel-
late counsel as well. See supra, at 4. Indeed, effective
trial counsel and appellate counsel are inextricably con-
nected elements of a fair trial.
The basic legal principle that should determine the
outcome of this case is the principle that requires courts to
treat like cases alike. To put the matter more familiarly,
what is sauce for the goose is sauce for the gander. The
dissent in Martinez wrote that there “is not a dime’s worth
of difference in principle between [ineffective-assistance-
of-trial-counsel] cases and many other cases in which
initial state habeas will be the first opportunity for a
10 DAVILA v. DAVIS
BREYER, J., dissenting
particular claim to be raised,” including “claims asserting
ineffective assistance of appellate counsel.” 566 U.S., at
19 (opinion of Scalia, J.). I agree.
With respect, I dissent.