Two decisions to report this week, which illustrate the spectrum of accord and division among The Nine, depending on subject matter. In Shinn v. Martinez Ramirez (No. 20-1009), a bitterly divided Court ruled (6-3 on ideological lines) that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes federal habeas courts from conducting evidentiary hearings or otherwise considering evidence beyond the state-court record when determining whether the ineffectiveness of postconviction counsel provides the “cause and prejudice” needed to overcome a procedural default. Meanwhile, in Morgan v. Sundance, Inc. (No. 21-328), the Court unanimously and breezily held that the federal policy of favoring arbitration (expressed in the Federal Arbitration Act) does not give courts license to create their own rules favoring arbitration over litigation.

Let’s start with habeas. Shinn was a consolidated case involving two prisoners—David Martinez Ramirez and Barry Lee Jones—who were convicted of capital crimes in Arizona state court and sentenced to death. (As is his custom, Justice Thomas spent a great deal of time describing the grisly details of their crimes, which we’ll spare you.) In each case, the Arizona Supreme Court affirmed the convictions and the prisoners were denied state postconviction relief. Each then filed for federal habeas relief under 28 USC 2254, arguing that their trial counsel had been constitutionally ineffective for failing to conduct adequate investigations (in Jones’s case, for failing to investigate evidence suggesting that Jones could not have committed the crime; and in Ramirez’s case, for failing to investigate mitigating evidence regarding Ramirez’s intellectual disability at sentencing). And in each case, the federal district court concluded that the petitioners had procedurally defaulted on their claims because they had not properly presented them in their state postconviction proceedings. To overcome a procedural default under AEDPA, a petitioner must demonstrate “cause” to excuse the defect and “actual prejudice” resulting from it. Ramirez and Jones sought to do this by pointing to the ineffectiveness of their postconviction counsel (on top of the constitutional ineffectiveness of their trial counsel). In each case, the district court held evidentiary hearings to allow Ramirez and Jones to demonstrate the ineffectiveness of their postconviction counsel. (The District Court in Ramirez’s case nevertheless denied habeas relief on the merits of the Sixth Amendment claim, while in Jones’s case, the petition was granted.)

In a decision that will make it extremely difficult for habeas petitioners to demonstrate ineffectiveness of postconviction counsel, the Supreme Court reversed. Writing for the conservative majority, Justice Thomas described the “costs” imposed by federal habeas review on states’ abilities to enforce their criminal law and stressed that these costs, and a general respect for state sovereignty, made it necessary to narrowly circumscribe the availability of federal habeas relief. One of the most important limitations, Thomas explained, is the general rule that a prisoner may not present evidence or arguments that were not first presented to state courts in compliance with state procedural rules. Though federal courts may forgive a procedural default under certain circumstances, the bar is deliberately hard to clear. The petitioner must demonstrate adequate cause for the default and actual prejudice as a result of the underlying violation of federal law. As a general rule, “attorney error cannot provide cause to excuse a default.” However, in Martinez v. Ryan (2012), the Court carved out a “narrow exception” to this rule, holding that ineffective assistance of state postconviction counsel may constitute “cause” to forgive procedural default of a trial IAC claim if state law precludes defendants from raising trial-level IAC on direct appeal and postconviction counsel failed to raise it in state habeas proceedings. In addition to the onerous procedural-default rule, Section 2254(e)(2) of AEDPA greatly limits habeas petitioners’ ability to develop the factual basis of their claims in federal court. With a few limited exceptions, prisoners are required to develop all of the evidence in support of their claims in state court, and the role of the federal habeas court is limited to examining that record to determine whether the state court misapplied federal law.

Here, Justice Thomas concluded that Ramirez and Jones had failed to develop a record to support their trial IAC claims in state court. The district courts and Ninth Circuit permitted Ramirez and Jones to develop this support through evidentiary hearings in federal court because it was not their fault that their postconviction counsel had failed to do so. But Thomas rejected this argument, noting that—unlike in the trial context, where defendants have a Sixth Amendment right to effective assistance of counsel—a prisoner pursuing postconviction relief “bears the risk in federal habeas for all attorney errors made in the course of the representation.” Thus, Martinez and Jones were themselves “at fault” for their postconviction counsel’s failure to develop a record to support the finding of ineffective assistance by their trial counsel. Ramirez and Jones argued that the Court’s holding in Martinez—that the failure of postconviction counsel to raise trial-level IAC can provide cause for excusing a procedural default—necessarily meant that federal habeas courts must permit development of the postconviction IAC claim. But Thomas concluded that Martinez’s judge-made, equitable exception could not overcome the express statutory bar of Section 2254(e)(2). So while a federal habeas petitioner may raise postconviction ineffectiveness as a ground for excusing a procedural default, he can only support this ground with evidence from the state-court record.

Justice Sotomayor penned a blistering dissent, joined by Justices Breyer and Kagan. As she observed, the majority’s opinion effectively overruled Martinez, a precedent that is only 10 years old. Martinez established that a petitioner is not at fault for any failure to bring trial-IAC claims in state court if that failure resulted from the negligence of postconviction counsel. But the majority had effectively overruled Martinez by holding that such a petitioner is nonetheless at fault for the ineffective assistance of postconviction counsel in developing the evidence of trial ineffectiveness in state court. “This decision is perverse. It is illogical: It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in post-conviction proceedings, as Martinez . . . did, but to fault the same petitioner for the postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim.”

The Nine found much more to agree on in Morgan, a case arising out of an employment lawsuit against a Taco Bell franchisee. Though the plaintiff, Morgan, had signed an agreement agreeing to arbitrate any employment disputes, she nevertheless filed a lawsuit (a nationwide collective action concerning alleged violations of federal law regarding overtime pay) in federal court. Sundance, the franchisee, initially defended against the lawsuit as if no arbitration agreement existed. But after its motion to dismiss was denied, and mediation proved unsuccessful, Sundance suddenly moved to stay the litigation and compel arbitration under the Federal Arbitration Act. Morgan opposed, arguing that Sundance had waived its right to arbitrate by litigating in federal court so long. Under Eighth Circuit precedent, a party waives the right to arbitration if it knew of the right, acted inconsistently with the right, and prejudiced the other party by its inconsistent actions. This third requirement of prejudice is not a feature of the law of waiver generally, but the Eighth Circuit adopted it because of the FAA’s “policy favoring arbitration.”

While regular readers know that the Court also tends to favor arbitration, this time they drew the line, holding that the Eighth Circuit had erred in conditioning waiver on a showing of prejudice. Writing for everyone, Justice Kagan concluded that the FAA’s policy favoring arbitration does not give courts license to create new arbitration-specific variants of general federal procedural rules, like those concerning wavier. Instead, the text of the FAA makes clear that courts are meant to treat arbitration agreements like any other contracts—no better no worse. Because the usual federal rule of waiver—the rule that would apply to allegations of waiver of other contractual rights—does not require a showing of prejudice, the FAA requires that the same rule be applied to allegations that the right to arbitrate has been waived. Having dispensed with the Eighth Circuit’s prejudice rule, the Court remanded for consideration of whether the usual rule of waiver (whether there was a voluntary relinquishment of a known right) precluded Sundance from compelling arbitration.

With that, we hope you have a great long weekend. There are still a couple dozen decisions to get through in the next month, so rest up!

Tadhg and Dave