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Supreme Court weighs sex offender’s representation appeal

Az man says counsel was ineffective in post-conviction proceedings

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WASHINGTON — The Supreme Court was asked Tuesday to consider whether an Arizona sex offender has a right to effective counsel, not only at trial but in subsequent challenges of his conviction as well.

Luis Mariano Martinez argued that he was not able to raise the claim of ineffective counsel in his post-conviction review — because the counsel he claimed was ineffective had botched the review filing.

But the attorney for the Arizona Department of Corrections said the state provided adequate legal assistance to Martinez, though no law required it to do so. He told the justices that requiring “effective counsel” for convicts in Martinez’s situation would open up an “infinite continuum of litigation” from criminals appealing their convictions with state funds.

Ineffective assistance of counsel cases are “easy to raise and difficult to litigate,” said Kent Cattani, chief counsel of criminal appeals for the Arizona Attorney General’s Office.

Twenty–four states supported Arizona’s case on the basis that providing counsel in the appeals process is a state choice. They argued in a friend–of–the–court brief that a ruling in Martinez’s favor would “undermine the finality of state convictions” by guaranteeing an attorney for criminals in post–conviction proceedings.

The U.S. Justice Department agreed and argued in support of Arizona.

“States are permitted to draw different lines,” Jeffrey B. Wall, assistant to the solicitor general, told the justices.

Wall said that a ruling for Martinez would result in significantly more appeals of original convictions. In its brief, the Justice Department said, “prisoners would have an overwhelming incentive to argue … counsel had been ineffective” if the justices agreed with Martinez.

Martinez’s attorney, Robert Bartels, agreed that a line needs to be drawn to prevent cyclical appeals. But he said that line needs to be drawn at least one step further, so that convicted criminals like Martinez have effective counsel when they go to claim that their previous attorney was ineffective.

“It is an absurd catch–22 to suggest that a defendant effectively defaults his … right to effective assistance of first post-conviction counsel … by failing to raise and litigate such claims without the assistance of counsel,” Bartels wrote in a court brief.

In 2002, Martinez was charged with sexual conduct with his then 11–year-old stepdaughter. The state’s case was based largely on expert testimony and DNA evidence.

Bartels wrote that Martinez’s trial attorney failed to research “readily available and persuasive expert testimony” that would have challenged the state’s expert. That lawyer also failed to present evidence weakening the DNA claims, Bartels wrote.

Martinez was convicted on two counts of sexual conduct with a person under the age of 15 and sentenced to consecutive terms of 35 years to life in prison.

Another state–provided attorney was assigned to Martinez’s appeal. She began paperwork for post-conviction relief – the first chance for Martinez to claim his trial counsel was ineffective – but then filed a statement saying she could find no cause for such action.

Those filings were made without consulting Martinez. Though he only speaks Spanish, she sent him a letter in English notifying him that he had 45 days to submit a petition on his own for post–conviction relief.

The 45 days passed without action by Martinez. When he filed with new counsel in 2004, the Arizona court ruled that the appellate lawyer’s actions, right or wrong, invalidated Martinez’s petition and that his arguments for her ineffectiveness were not sufficient to make an exception.

Through multiple appeals, Martinez’s legal team has argued that his state-provided lawyer failed to effectively serve him in both the trial and appeal process, squandering his opportunity to petition for better representation in the process.

The Supreme Court justices Tuesday questioned both sides about a “limiting principle,” the point at which the state should stop providing legal assistance to convicted criminals.

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“You have to draw the line some place and the court has already drawn (it),” Justice Samuel Alito said. “Where the line stands now, it’s drawn at a different place” than where Martinez proposed.

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States rally around Arizona

The Justice Department and 24 states filed briefs with the Supreme Court in support of Arizona. Wisconsin wrote the brief for the states, which included:

  • Alabama
  • Colorado
  • Delaware
  • Hawaii
  • Idaho
  • Indiana
  • Louisiana
  • Maine
  • Maryland
  • Montana
  • Nebraska
  • New Mexico
  • North Dakota
  • Rhode Island
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Utah
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  • Washington
  • Wisconsin
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