By: Jaidyn Rumpca

Shinn v. Ramirez,[1] decided in May 2022, thwarts federal courts’ abilities to consider evidence on ineffective assistance of counsel claims in death penalty cases. The Court in Ramirez held that a federal district court may not review evidence beyond a state-court record for ineffective assistance of counsel claims unless an exception under the federal habeas corpus statute (“the habeas corpus statute”), 28 U.S.C. § 2254(e)(2), applies.

There are two narrow exceptions under the habeas corpus statute. The first requires that a claim of ineffective assistance of counsel rely on a new constitutional rule that applies retroactively and was not available on direct appeal; the second requires that the fact(s) underlying the ineffective assistance of counsel claim could not have been discovered regardless of an accused’s diligence. Both exceptions require that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have[2]” entered a guilty verdict. Courts infrequently find these exceptions satisfied.  

Ramirez, in overruling precedent,[3] extends even to cases where both the accused’s trial counsel and state post-conviction counsel were ineffective. The Court reasoned that, because there is no constitutional right to counsel in state post-conviction proceedings, accused individuals may not bring ineffective assistance of counsel claims on habeas review if the claim reaches beyond state-court record and does not satisfy an exception. In essence, if an accused has an ineffective trial counsel and their post-conviction counsel is also ineffective in remedying trial counsel’s errors, they are out of luck.

The practical effects of Ramirez will be grave. As Justice Sotomayor explained in her dissent, Ramirez will allow an accused person whose trial attorney “did not provide even the bare minimum level of representation required by the Constitution [to] be executed because forces outside of their control prevented them from vindicating their constitutional right to counsel.[4]” Thus, more people, including innocent people, will be executed.

The Innocence Project reports that 186 innocent people have been sentenced to death since 1989, with ineffective assistance of counsel being a leading cause for these wrongful sentences. This reality raises the question, what can an accused individual do to have their ineffective assistance of counsel claim heard in federal court?

In Neal v. Vannoy,[5] a post-Ramirez case, a district court granted habeas relief on an ineffective assistance of counsel claim, despite the claim not satisfying an exception under the habeas corpus statute. There, petitioner’s trial counsel failed to impeach the prosecution’s sole witness implicating petitioner as the shooter in a first-degree murder with available, persuasive evidence, failed to take necessary steps to discover crucial DNA evidence, and failed to take other routine steps to prepare for trial, such as hiring an expert. The district court acknowledged that it may not consider the newly discovered DNA evidence or otherwise develop the facts of the case, but it nonetheless granted habeas relief for ineffective assistance of counsel, reasoning that “the state court record standing alone demonstrate[d] that petitioner was denied ineffective assistance of counsel.[6]

When is a “state-court record standing alone” enough for other courts to grant habeas relief on ineffective assistance of counsel claims without being considered to have gone beyond the state-court record? What facts would be needed to determine that the state-court record alone demonstrates ineffective assistance of counsel? There is currently no answer to these questions. However, as long as Neal is still good law, it may be a building block for litigators and petitioners fighting to have ineffective assistance of counsel claims heard on federal habeas corpus review.

[1] Shinn v. Ramirez, 142 S. Ct. 1718 (2022).

[2] 28 U.S.C. § 2254(e)(2)(B).

[3] Martinez v. Ryan, 566 U.S. 1 (2012) (recognizing the right to raise an ineffective assistance of counsel claim on federal habeas corpus review when the accused received ineffective assistance of trial counsel and ineffective assistance of state post-conviction counsel. Martinez did not solidify a constitutional right to state post-conviction counsel).

[4] Ramirez, 142 S. Ct. at 1749.

[5] Neal v. Vannoy, No. 15-5390, 2022 WL 2187415 (E.D. La. June 10, 2022).

[6] Id. at 7.

Jaidyn is a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Her legal interests include public defense and civil rights law. Her personal interests include international travel, spending time with friends and family, hiking, and hanging out with her kitten.