Opinion
No. 2019-KK-01962
04-27-2020
STATE of Louisiana v. Justin DAVIS
PER CURIAM: Writ granted. Under the unusual circumstances here, and in the interests of justice, we grant defendant's application to reverse the ruling of the court of appeal, which found defendant's application for post-conviction relief is time-barred. We reinstate the ruling of the district court, and we remand to the district court to conduct an evidentiary hearing on defendant's claim of ineffective assistance of trial counsel for failing to investigate and present an alibi defense (as evidenced by the ten corroborating affiants).
REVERSED AND REMANDED
Johnson, C.J., additionally concurs and assigns reasons.
Crain, J., would deny.
JOHNSON, C.J., additionally concurs.
I concur in our decision to remand for an evidentiary hearing on Mr. Davis's claim that he received ineffective assistance for trial counsel's failure to investigate and present evidence of Mr. Davis's alibi. However, I believe we should explicitly recognize an exception to otherwise applicable time or procedural bars where—as in this case—a prison inmate's failure to comply was the fault of ineffective counsel in post-conviction.
Despite Mr. Davis's incarceration and limited resources, he hired post-conviction counsel to pursue on collateral review his claim that trial counsel rendered ineffective assistance by failing to adequately investigate and present an alibi defense. Ten witnesses corroborate Mr. Davis's alibi—that he was in New Orleans, at a card game, at the time the crime occurred in Baton Rouge. Their sworn affidavits were attached as exhibits to the application for post-conviction relief. Post-conviction counsel filed this application four days after the two year deadline had expired. La. C. Cr. P. art. 930.8. Counsel argued that his client's conviction was not final (and therefore the two years had not begun to run) until the time for seeking rehearing in this Court had expired. Counsel was incorrect. There is no right to rehearing from the denial of an application for a writ of certiorari to this court on direct review. "An application for rehearing will not be considered when the court has merely granted or denied an application for a writ of certiorari." La. Sup. Ct. R. IX, § 6. Convictions are final when we deny the writ application. "[T]he judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ." La. C. Cr. P. art. 922(D).
Therefore, post-conviction counsel was ineffective. "An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland." Hinton v. Alabama, 571 U.S. 263, 274, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).
Without this Court's remand today, this miscalculation would have forever insulated a colorable claim of ineffective assistance of trial counsel from review.
The right to the effective assistance of counsel at trial is a bedrock principle in our justice system. ... See, e.g., Powell v. Alabama, 287 U.S. 45, 68–69, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ("[The defendant] requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence").
If defendant's failure to timely file his application for post-conviction relief (alleging a colorable claim of ineffective assistance of trial counsel) was solely the result of ineffective post-conviction counsel's ignorance of relevant law, the failure to timely file the application should be excused. Cf. Martinez v. Ryan, 566 U.S. 1, 9, 132 S.Ct. 1309, 182 L.Ed.2d 272, (2012) ("To protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to ... recogniz[e] a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.").
To find that retained or appointed counsel is not obligated to provide effective assistance because state post-conviction proceedings are somehow beyond the reach of the Sixth Amendment would offend basic and fundamental principles of justice. This is particularly so when counsel's ineffectiveness in post-conviction proceedings means that trial counsel's performance will never be reviewed. The poor performances of two attorneys do not cancel each other out. Rather they magnify the potential for injustice.
While it is true that "State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings" even in capital cases, Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), it does not necessarily follow that—when a state undertakes to provide this optional layer of review—there is no right to fundamental fairness in the proceedings. A state's procedures for post-conviction relief should still not "offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," or "transgresses any recognized principle of fundamental fairness in operation." Medina v. California, 505 U.S. 437, 446, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (internal quotation marks omitted).
This exception is fair and equitable. Most litigants before the courts can assess the relative merits of different lawyers and select one. They can freely and easily communicate with their lawyer. They can remove the lawyer and re-hire another if they no longer believe the lawyer is acting as their agent. For these reasons, courts impute a lawyer's errors to a litigant. But the average incarcerated person has—at best—limited resources. He is severely limited in his ability to review the relative professional strengths of any lawyer before engaging them. He cannot always freely and easily communicate with the lawyer afterwards. In cases where a prisoner has a colorable claim that his trial was fundamentally unfair or produced an inaccurate result, it is in the interests of justice for courts to hear that claim, despite his counsel's failings.