Introduction

The late Justice Antonin Scalia wrote, “there is no basis in text, tradition, or even contemporary practice for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.[1]” Though grim, this sentiment is more pertinent now than ever in light of modern restrictions on habeas corpus proceedings. Habeas corpus, translated from Latin to “produce the body[2]”, is a process by which an individual may challenge the legality of their confinement.[3] In other words, a state prisoner may seek federal habeas relief if their incarceration or sentencing were a result of a violation of the Constitution, federal law, or treaties of the United States.[4] The writ of habeas corpus is one of the most deeply embedded individual liberties in the fabric of our nation, in which its origins date back to English common law.[5] Furthermore, it is one of few rights enumerated in the original body of the Constitution,[6] indicating the Framers’ prioritization of its protection.[7]

Modern habeas procedure is governed by a 1996 statute, the Antiterrorism and Effective Death Penalty Act.[8]While the statute is quite expansive in reach,[9] it greatly restricted the availability of habeas corpus.[10] Notably, the statute barred prisoners from federal habeas relief unless their constitutional claim was first made in their state-court record.[11]

A 2012 case, Martinez v. Ryan, created a narrow exception to this provision of AEDPA.[12] Martinez held that a prisoner seeking habeas relief on the basis of 6th Amendment ineffective-assistance-of-counsel claims, and due to ineffective post-conviction counsel, failed to develop this claim in the state-court record, is not at fault for this failure to develop his claim.[13] For prisoners of this circumstance, federal habeas court was their first and only opportunity to have these constitutional claims heard. Thus, Martinez created a forum for prisoners to voice these constitutional claims for the first time.

Martinez remained the equitable solution for prisoners lacking a proper opportunity to develop ineffective-assistance claims for nearly ten years. However, the 2022 Supreme Court decision Shinn v. Ramirez marked a significant constriction in the availability of habeas relief on the basis of ineffective-assistance-of-counsel claims.[14] Shinnconsolidated the cases of two indigent defendants, David Martinez Ramirez and Barry Lee Jones, who were convicted of capital crimes in the state of Arizona.[15] Barry Lee Jones was convicted of murdering his girlfriend’s 4-year-old daughter.[16] However, his trial counsel failed to conduct any discovery regarding the police investigation, medical examination, or the fact that he was the sole suspect investigated.[17] His trial counsel only brought forth one witness and was said to be wildly unprepared.[18] His post-conviction counsel did not conduct further discovery beyond the state-court record, and even worse, was not even qualified under Arizona law to defend a capital case.[19] On the other hand, David Ramirez was convicted of murdering his girlfriend and her daughter.[20] However, David Ramirez displayed substantial intellectual disability, which his trial counsel failed to address to the court.[21] Such a discovery would have served as a mitigating factor to the capital crimes Ramirez faced, reducing his sentence to life without parole.[22] His post-conviction counsel once again did not conduct any discovery beyond the state-court record, neglecting evidence of intellectual disabilities and childhood abuse.[23] Both men sought federal habeas relief via 6th Amendment ineffective-assistance claims. The defendants asserted that, had their counsel conducted adequate discovery, they could have evaded their sentences or even  conviction altogether.[24]   In Shinn, the Court asked if prisoners meeting the Martinez exception are entitled to evidentiary hearings on the merits of ineffective-assistance claims in federal habeas proceedings.[25]Considered a highly controversial constraint on habeas relief, the Court ruled that “a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on the ineffective assistance of state post-conviction counsel.[26]” While not explicitly overturning the case, Shinn effectively “hollows out the promise of Martinez,[27]” rendering it useless. In effect, Shinn upholds a prisoner’s right to claim ineffective-assistance in federal habeas court. However, defendants are barred from developing any evidence to support their claim.[28]

The illogical nature of this conclusion[29], based heavily on a procedural technicality, is contradictory and irrevocably damaging to the maintenance of justice.[30] Christina Swarns, executive director of the Innocence Project, states, “the Court’s emphasis on finality…exacerbates the intolerable risk of innocent people languishing in prison and even being executed.”[31] Thus, this note aims to provide a critique of the opinion in Shinn v. Ramirez and its impacts on modern habeas corpus procedure. First, it will establish the history of habeas procedure, highlighting the relevant legislation and case law governing it. Second, this note will discuss the majority and dissenting opinions of the Supreme Court in Shinn v. Ramirez. This note will then discuss the expected ramifications of the holding in Shinn, particularly highlighting its impact on wrongful conviction and execution. Lastly, it will propose a solution to redress some of the aforementioned ramifications.

History of Habeas Procedure

Pre-AEDPA Regulation of Habeas

The principle of habeas corpus is said to have originated as early as 1215, appearing in King John’s Magna Carta to guarantee immunity from unlawful imprisonment.[32] It was not codified into a specific legal process until England’s Habeas Corpus Act of 1679, which guaranteed the right to petition one’s wrongful imprisonment and set forth the appropriate procedure.[33] The British deference to habeas corpus was tremendous, as exemplified by Willam Blackstone, a legal scholar who described it as “The Great Writ”.[34] The principle of habeas corpus was so foundational that the British colonizers sought to adopt it in America.[35] Article I, Section 9, Clause 2 of the Constitution states, “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.[36]” This clause, informally known as the Suspension Clause, demonstrates a vehement effort by the Framers to maintain the liberties afforded by habeas corpus.[37] The right gained further statutory support with the passage of the Judiciary Act of 1789, granting federal courts the authority to bestow the writ upon federal prisoners.[38]Eventually, the Habeas Corpus Act of 1867 expanded the habeas jurisdiction of federal courts to include state prisoners as well.[39]

In the twentieth century, further restrictions were imposed on the privilege of habeas corpus, specifying the unique circumstances under which the writ may be applied. In the 1962 case Hill v. United States, the Supreme Court clarified the severity of procedural defects necessary for qualification.[40] Justice Stewart asserted that a petitioner seeking habeas relief must have suffered “a fundamental defect which inherently results in a complete miscarriage of justice,[41]” and that the petitioner must additionally demonstrate “exceptional circumstances where the need for the remedy afforded by the writ…is apparent.[42]” Along with the degree of procedural defect, the Court also began exercising the exhaustion requirement.[43] This ruling made it necessary for state prisoners to exhaust the state remedies available to them before habeas relief may be granted.[44] In the 1971 case Picard v. Connor, the Court also held that, in order to satisfy the exhaustion requirement, “a state prisoner [must] present the state courts with the same claim he urges upon the federal courts.[45]” In 1977, Wainwright v. Sykes clarified this condition, maintaining that a petitioner’s failure to bring forth their claim in state court bars them from federal habeas relief. The State need not provide such a remedy unless the individual can establish “cause and prejudice.[46]” Cause requires adequate reasoning for failure to bring forth the claim in the state records while prejudice “requires an actual, substantial disadvantage to the prisoner.[47]” The test was further emphasized in the 1992 case Keeney v. Tamayo-Reyes. There, the Court found that the prisoner was responsible for his post-conviction counsel’s negligence and was therefore unable to establish cause.[48] However, the cause and prejudice standard was soon considered too restrictive. In 1986, Justice O’Connor wrote, “Adherence to the cause and prejudice test…will not prevent federal habeas corpus courts from ensuring the fundamental fairness that is the central concern of the writ of habeas corpus.[49]” The case at issue, Murray v. Carrier, held that federal courts may grant the writ “even in absence of a showing of cause[50]” when it is probable that the “constitutional violation…resulted in the conviction of one who is actually innocent.[51]” The language used by Justice O’Connor sparked legal discourse over the notion of “actual innocence” as sole justification for habeas relief[52]. The 1993 case Herrera v. Collins curbed this conversation, holding that absent an accompanying constitutional violation in the criminal proceedings, “claims of actual innocence based on newly discovered evidence[53]” are not grounds for federal habeas relief.

As demonstrated, the landscape of habeas procedure changed drastically throughout the 20th century. As many of the new requirements were primarily governed by case law, the path was paved for a comprehensive piece of legislation to codify modern habeas procedure.

The Introduction of AEDPA

In the year following the Oklahoma City bombing, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a sweeping statute aiming to “deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes.[54]” Criticized as a “quick solution to terrorism,[55]” the Act featured many new restrictive policies for criminal procedure, including a significant narrowing of habeas corpus.[56] AEDPA established a one-year statute of limitations for habeas petitions, restricted review of state-court decisions by federal courts, and made it significantly more difficult to pursue successive petitions.[57] While the statute itself is considerably expansive[58], the issue presented in Shinn discusses merely one section: § 2254(e)(2)[59]. The section outlines the two very limited circumstances in which an applicant who “has failed to develop the factual basis of a claim in State court proceedings[60]” may develop evidence in federal habeas court–neither of which are applicable in Jones’ and Ramirez’s cases. The first of these exceptions provides that the claim relies on a “new rule of constitutional law,[61]” and the second provides that the claim relies on newly discovered facts not discoverable by the “exercise of due diligence.[62]” It is relevant to note that the “fail to develop” standard of  § 2254(e)(2) refers to when the prisoner themself is at fault for the failure to raise a claim.[63] The Supreme Court has clarified the circumstances in which a prisoner is at fault and those in which they are not. In the 1984 case Strickland v. Washington, the Court set forth standards to determine when trial counsel can be deemed ineffective, and hence, constitute a 6th Amendment violation for the criminal defendant.[64] The Court held that a successful ineffective-assistance claim requires a demonstration that the counsel was objectively deficient and that the deficient performance “prejudiced the defense so as to deprive the defendant of a fair trial.[65]” However, the redress for ineffective counsel only extends to the boundaries of the Sixth Amendment. The Court has held that “there is no constitutional right to an attorney in state post-conviction proceedings.[66]” Therefore, all Sixth Amendment claims surrounding post-conviction counsel are procedurally defaulted because of the lack of constitutional issue posed. This also means that any fault produced by the ineffective assistance of post-conviction counsel is instead attributed to the prisoner.[67] This rule remained relatively untouched by the Court and the legislature for several decades.

The Martinez Exception

In 2012, the Court established an exception to the general rule that ineffective post-conviction counsel is not proper cause for a procedural default.[68] Martinez v. Ryan held that failure to raise a claim of ineffective assistance of trial counsel in the state-court record may not be procedurally defaulted if “there was no counsel or counsel in [post-conviction proceedings] was ineffective[69]” and the state law required these claims to be raised for the first time in state post-conviction proceedings.[70] In these States, post-conviction proceedings serve as the prisoner’s “one and only appeal” on that claim.[71] In essence, the ruling was an equitable expansion of habeas procedure which provided state prisoners with substantial ineffective-assistance of trial counsel claims with an avenue to have these claims heard for the first time.[72] In cases where a prisoner’s claim was procedurally defaulted by a failure to introduce in the state-court record, and the prisoner also does not satisfy the “failure to develop” exceptions of AEDPA’s § 2254(e)(2), Martinez now supplied them with a third avenue to have their claims heard by a federal habeas court.[73] While Martinez established an exception to demonstrate cause for procedural default, the question remained unanswered as to whether this also entitled prisoners to evidentiary hearings to establish this cause.[74]

Shinn v. Ramirez

Holding Summary and Thomas’ Majority

As aforementioned, the primary question the Court faced in the case of Shinn v. Ramirez was whether the Martinezexception excuses procedural default under AEDPA to allow for an evidentiary hearing in federal habeas proceedings. In a 6-3 decision, the Court ruled that federal courts are not permitted to hear evidence outside of the state-court record “simply because post-conviction counsel is alleged to have negligently failed to develop the state-court record.[75]” Justice Thomas, in writing for the majority, relies on many governing principles to justify his narrow reading of Martinezincluding state sovereignty, preservation of judicial resources, and the principle of finality.[76] Thomas emphasizes that “federal order[s] to retry or release a state prisoner [override] the State’s sovereign power,[77]” to which the Court must show deference. Thomas notes the states’ interest in finality, both as a moral principle and a judicial resource interest.[78]He acknowledges not only that “federal intervention imposes significant costs on state criminal justice systems,[79]” but asserts, “only with real finality can the victims of crime move forward knowing the moral judgment will be carried out.[80]”

Thomas’s strongest argument against the respondents is that the Court has long established that the fault of post-conviction counsel is attributed to the prisoner[81] because of its lack of constitutional protection.[82] Neither the petitioner nor respondents dispute this fact.[83] However, the dissent argues that Martinez is sufficient to excuse this procedural default.

Thomas recognizes the narrowness of the Martinez ruling: “Martinez addressed only one kind of claim: ineffective assistance of trial counsel.[84]” Not only does he emphasize the narrowness of its subject matter, but of its function: to create an exception to raise a claim. He asserts that it is implausible to argue that “Congress enacted § 2254(e)(2) with the expectation[85]” that it later would extend itself to excusing fault for post-conviction counsel. Thomas outlines the problem with expanding § 2254(e)(2) in this manner, asserting that a favorable ruling here could be construed to “extend to any claim that post-conviction counsel negligently failed to develop.[86]” Thomas claims that while Martinezamounted to a “judge-made” exception[87], a favorable decision for Ramirez and Jones would amount to a statutory amendment, which “[they] have no authority to amend.[88]” Because the Court was “unusually explicit about the narrowness of [the] decision[89]” in Martinez, Thomas reiterates that the ruling cannot be expanded to allow for evidentiary hearings.[90]

 Interestingly, he concedes that “state prisoners often need evidence outside the trial record to support their trial-ineffective-assistance claims.[91]” Yet, he deems the evidentiary hearings occurring in Jones’ and Ramirez’s cases to be an “improper burden imposed on the States when Martinez applies beyond its narrow scope.[92]”

In conclusion, Thomas returns to his guiding principles of state sovereignty and judicial resources, as well as the projected consequences of an expansion of federal habeas relief. He asserts that “broadly available habeas relief encourages prisoners[93]” to reserve certain claims for federal evidentiary hearings as a somewhat back-up option if state claims fall short. In doing so, federal habeas courts would be disrespecting the finality of state court decisions, which “is essential to both the retributive and deterrent functions of criminal law.[94]” Hence, an expansion as pleaded for by the respondents is not in accordance with § 2254(e)(2), nor is it in the jurisdiction of the Court.

Critique of the Majority and Sotomayor’s Dissent

The major criticism faced by the majority is the illogical nature of its conclusion: “this decision is perverse. It is illogical.[95]” The very nature of this holding renders Martinez and similar precedent futile by barring evidentiary hearings on the claim. Because the Court does not explicitly overturn Martinez, what results is the ability to raise a claim without the means to defend it with evidence. One of the primary sources of ineffective-assistance claims is errors of omission.[96] If habeas petitions falling under the Martinez exception are limited to the state-court record, the petitioners will likely be left with no defense to support their claims because evidence of their claim depends not on what is in the state-court record, but what isn’t. This is precisely the case with Jones and Ramirez, both of whom were unable to present witnesses and testimonies which were vital to their defense and sentencing.[97] Thomas himself deems this conclusion as useless, yet still asserts his position: “We agree that any such Martinez hearing would serve no purpose.[98]”

Sotomayor criticizes the majority’s view of fault as it relates to post-conviction counsel. Further demonstrating the unsound reasoning of the majority and the abandonment of precedent, she states “a habeas petitioner can be faultless for a procedural default under Martinez and nonetheless barred…from seeking an evidentiary hearing in federal court.[99]”\

According to Sotomayor, the majority incorrectly reduces Martinez to strictly its factual holding, this being that it creates an exception to raise an ineffective-assistance claim for the first time in federal habeas court.[100] An essential component to the Martinez holding is the notion that a prisoner failing to develop their claim of ineffective trial counsel due to ineffective post-conviction counsel is not at fault. Sotomayor argues that by pure logic, it is “clear that Jones and Ramirez are not at fault for their attorney’s failures to develop the state-court record.[101]” Thus, their blamelessness would not be subject to § 2254(e)(2) “failure to develop” standard and they therefore should be granted evidentiary hearings on the merits of their claims.[102] In light of this conclusion, the dissent makes clear that there is no statutory reinterpretation necessary of AEDPA, contrary to the majority’s holding. While a blatant amendment to § 2254(e)(2) would certainly exceed the authority of the judiciary, the Court has plainly held in Martinez that the failure of post-conviction counsel to develop ineffectiveness claims in the state-record cannot be attributed to habeas petitioners meeting the limited exception. Jones and Ramirez uncontestedly met the Martinez exception, and thus, should be entitled to evidentiary hearings.

Sotomayor also criticizes the majority’s emphasis on state sovereignty and finality, claiming that the Court fails to weigh “the constitutional protections at the core of our adversarial system.[103]” Congress, in passing AEDPA, did not intend to make state-court decisions essentially binding, but rather sought a balance of respecting state decisions and righting constitutional wrongs.[104] Furthermore, the importance of protecting the core functions of the adversarial criminal system is the very reason that federal habeas review exists–to correct and redress these violations.[105]Sotomayor also brings light to the very heart of Jones and Ramirez’s cases which the majority masks under procedural discussion: two men afforded “not…even the bare minimum level of representation required by the Constitution[106]” are barred from seeking redress for this extreme malfunction. The majority’s holding fails to promote fundamental fairness in its construction of AEDPA, and accordingly, “what this Court regularly calls ‘the Great Writ’ hardly [is] worthy of the label.[107]”

Consequences of Shinn

In addressing the expected consequences of Shinn, it is first necessary to refute what the majority contends as the avoided consequences of its holding. Firstly, Thomas expresses fear that a favorable decision for Jones and Ramirez would result in petitioners “sandbag[ing] state courts’ by strategically holding back claims from post-conviction review to present them for the first time in federal court.[108]” Sotomayor holds, and I agree, that this conclusion is rather odd because it is ultimately a State’s doing in reserving constitutional challenges for post-conviction review rather than appellate.[109] It is highly unlikely that a prisoner would see a benefit to raising a claim for the first time in federal court when an otherwise available forum existed.[110] Furthermore, it would also make little sense for a prisoner to intentionally prolong their legal proceedings under the notion that presenting the claim before a federal court would afford some sort of advantage. If anything, the hoops one must jump through to receive federal habeas relief are arguably more difficult than those of state relief, which again begs the question why a petitioner would actively seek to raise their claim in federal court.

Thomas also expresses concern that this holding would extend to claims beyond ineffective-assistance of trial counsel claims, allowing prisoners to develop any claim which their post-conviction counsel failed to address.[111] However, he also asserts that Martinez was especially narrow to trial-ineffective-assistance claims[112]. As Shinn follows from the logic of Martinez, it is very plausible to keep its holding isolated to trial-ineffective-assistance claims as was done before. In this way, the respondents’ interpretation of § 2254(e)(2) does not “[lack] any principled limit.[113]”

Lastly, Sotomayor refutes the claim that allowing evidentiary hearings for those meeting the Martinez exception would unduly burden state judicial resources. Martinez in effect for the previous 10 years typically allowed for evidentiary hearings when post-conviction counsel failed to develop trial-ineffective-assistance claims in states requiring them to do so in state post-conviction proceedings.[114] Sotomayor cites a 9-year study of three States meeting the procedural requirements of Martinez.[115] Among the 1,200 habeas petitions raised under the Martinez exception, less than two percent of these cases were awarded evidentiary hearings.[116] The majority therefore flagrantly overstates the frequency by which habeas petitioners meet the Martinez exception and are awarded habeas relief.[117] To reiterate, Martinez cases are a rare exception in which post-conviction attorney error is considered an external factor.[118]

What I see as the greatest consequence of Shinn, which Sotomayor does not bring sufficient light to, is the fact that two men have substantial mitigating and exculpatory evidence that will never be heard in a court of law. Sotomayor warns, “The damage [will not] be limited to these two cases.[119]” Needless to say, the safeguarding of constitutional rights should be a major priority for the courts, but what about true claims of innocence? For Jones in particular, this case is not only about ineffective assistance of both trial and post-conviction counsel, but more direly, an attempt to exonerate himself with evidence never presented to the courts. Peter, anonymous host of 5-4 Podcast, states, “This case weaves together procedural technicality and human brutality in a way that feels genuinely dystopian.[120]” The Court has asserted that it is not of their concern if an innocent person is incarcerated or executed for crimes they did not commit, and that exculpatory evidence on its own does not permit federal habeas relief.[121] Now, the Court solidifies and extends this notion, declaring that even if exculpatory evidence exists and there was a constitutional violation, it cannot be heard by any federal court if the petitioner did not follow the procedural technicality–development of the claim in the state-court record. How can a system be regarded as fair when it knowingly quells the pleas of exoneration of those it claims to protect?

There will be countless state prisoners harmed by the Shinn ruling–particularly indigent defendants such as Jones and Ramirez. It is no secret that the public defender system in our nation is severely lacking in resources, resulting in less than exceptional defenses for the accused nationwide. Public defenders can take on over twenty criminal cases in one day and over 1000 per year[122]. In many of these cases, the attorneys simply do not have the time or resources to conduct adequate discovery, leading them to advise their clients to plead guilty without a proper examination of the facts[123]. Furthermore, death row prisoners have been stripped of Sixth Amendment protection for nearly 35 years, and since have been relying on the charitable work of pro bono attorneys if they have any hope of an adequate defense.[124] This is simply not a viable solution to an incredibly grave issue. It is undeniable that more indigent defendants like Jones and Ramirez will suffer both ineffective trial and post-conviction counsel, leaving their cries for exoneration unheard. More notably, very few public defenders meet the qualifications necessary to represent clients in capital cases due to their complex nature.[125] This was pertinent in Jones’ case, where the Arizona Supreme Court waived those qualifications, appointing post-conviction counsel that was not equipped to take on a capital case.[126] An attorney that is at least qualified to take a case is utterly imperative when the quality of their defense is a matter of life or death. It is estimated that as many as one in twenty criminal cases result in a wrongful conviction.[127] An even more alarming estimate, the Innocence Project claims that at least 186 people have been wrongfully executed since 1989.[128] Shinn can only be expected to exacerbate this already unreasonable rate of miscarriages of justice, putting the legitimacy of our legal system as a whole in question. Shinn effectively “closes the federal courthouse doors to evidence of ineffective counsel, leaving many without a meaningful opportunity to prove their innocence.[129]” The evidentiary hearings that would have been awarded by a favorable decision for Jones and Ramirez are certainly costly to an extent, as all judicial proceedings can be. However, “it is…the cost of a free and just society.[130]” Shinn marks an abandonment of fundamental fairness, a guiding principle upon which the criminal justice system was established. The decision is “devoid of morality and empathy.[131]” Sotomayor succinctly states, “The responsibility for this devastating outcome lies not with Congress, but with this Court.[132]” Those who will suffer are the indigent population, left unjustly deprived of liberty and voiceless in a court of law.

Proposed Solutions

A potential solution to the illogical conclusion of Shinn would be to urge federal legislation requiring all states to procedurally allow for constitutional claims to be made in the direct appeals process, rather than reserving these claims for post-conviction proceedings. By reserving constitutional claims for post-conviction proceedings, state prisoners are given only one opportunity to raise a substantial ineffective-assistance claim.[133] By opening the direct appellate forum to hear constitutional claims, the prisoner would be afforded a greater chance of that claim being heard and recorded in the state-record. Furthermore, if this claim is raised and the appellate attorney fails to properly develop it in the state-court record, the blame would not be attributed to the prisoner because the prisoner in the appellate process is protected by the 6th amendment. Hence, if the prisoner pursues federal habeas relief, they would not be barred by § 2254(e)(2) for a failure to develop the factual basis of their claim, this instead being attributed to their constitutionally protected counsel. However, this solution falls short in a major way. If a prisoner continues to be represented by their ineffective trial counsel throughout their direct appeal process, the claim of ineffectiveness likely will never be made. Furthermore, while this statute would increase the opportunity to have these claims heard, it likely would raise the bar much higher to having claims heard for the first time in federal court. A conservative judiciary would likely discount any of these claims to be heard for the first time, deeming that the prisoner missed too many opportunities to introduce the claim and that it ultimately is their fault for its lack of development.

The most ideal solution to the issue at hand is to call upon Congress to amend § 2254(e)(2) of AEDPA to include a third exception for petitioners who fail to develop the state-court record: if it is procedurally required by the State that constitutional claims be raised for the first time in post-conviction proceedings, and the prisoner, due to ineffective post-conviction counsel, has failed to develop a substantial trial-ineffective-assistance claim in the state-record, the prisoner may both raise and develop that claim for the first time in federal habeas court. This solution essentially codifies the ruling in Martinez while extending that rationale to warrant evidentiary hearings. This amendment also provides a work-around for the argument of the majority, being that a favorable decision for Jones and Ramirez would have resulted in a statutory amendment. Once again, Martinez and the respondents do not view prisoners in Jones’ and Ramirez’s position to be at fault as defined in the opening clause of § 2254(e)(2). Because the interpretation of the majority cannot be amended itself, this solution provides a satisfactory outcome for the respondents achieved by procedural means satisfactory to the petitioners. Furthermore, the use of  rather specific language would ensure that this amendment to § 2254(e)(2) would be limited only to trial-ineffective-assistance claims, eradicating Thomas’s fear of unrestrained expansion of habeas rights. An amendment to AEDPA would be the most viable solution to redress the grave mistake made in Shinn v. Ramirez and would promote the fundamental fairness at the core of our adversarial justice system.

[1] Herrera v. Collins, 506 U.S. 390, 427 (1993) (Scalia, J., concurring).

[2] Magna Carta: Muse & Mentor | Writ of Habeas Corpus, Library of Congress (Nov. 6, 2014), https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/writ-of-habeas-corpus.html.

[3] ARTICLE: V. Review Proceedings: Habeas Relief for State Prisoners, 32 Geo. L.J. Ann. Rev. Crim. Proc. 817 (2003). [hereinafter Review Proceedings]

[4] Id. at 821

[5] Benjamin R. Orye III, Note, The Failure of Words: Habeas Corpus Reform, The Antiterrorissm and Effective Death Penalty Act, and When a Judgement of Conviction Becomes Final for the Purposes of 28 U.S.C. § 2255(1), 44 Wm. & Mary L. Rev. 441, 444 (2002).

[6] U.S. Const. art. I, § 9, cl. 2.

[7] Benjamin R. Oyre III, supra note 5, at 446.

[8] Jennifer A. Beall, , 73 Ind. L.J. 693, 695 (1998).

[9]  Id. at 695.

[10] Id. at 695.

[11]  28 U.S.C. § 2254(e)(2).

[12] Martinez v. Ryan, 566 U.S. 1, 15 (2012).

[13] Id.

[14] Shinn v. Ramirez, No. 20-1009, slip op. (S. Ct. May 23, 2022).

[15]  Id. at 2-4.

[16] Id. at 3 (Sotomayor, J., dissenting).

[17] 5-4, Prologue Projects, at 29:40 (June 28, 2022), https://www.fivefourpod.com.

[18]Id. at

[19]Id. at

[20] Shinn, slip op. at 5 (Sotomayor, J., dissenting).

[21] Id. at 5 (Sotomayor, J., dissenting).

[22] Id. at 5 (Sotomayor, J., dissenting).

[23] Id. at 5 (Sotomayor, J., dissenting).

[24] Id. at 2-5.

[25] Id. at 2.

[26] Id. at 13.

[27] 5-4, supra note 11, at 29:40.

[28] Id. at 29:22

[29] Shinn, slip op. at 2 (Sotomayor, J., dissenting).

[30] Christina Swarns, The Fierce Urgency of Now, The Innocence Project (Sept. 12, 2022), https://innocenceproject.org/the-fierce-urgency-of-now/

[31] Id.

[32] Library of Congress, supra note 2.

[33] Id.

[34] Robert G. Simmons, The Writ of Habeas Corpus: The Most Celebrated Writ in the English Law, 41 A.B.A.J. 413 (1955)

[35] Benjamin R. Oyre III, supra note 5, at 445.

[36] U.S. Const. art. I, § 9, cl. 2.

[37] Benjamin R. Oyre III, supra note 5, at 445.

[38] Id. at 446.

[39] Id. at 446.

[40] Hill v. United States, 368 U.S. 424 (1962).

[41] Id. at 428.

[42] Id. at (1962) 428 (quoting Bowen v. Johnston, 306 U.S. 19).

[43] Picard v. Connor, 404 U.S. 270 (1971).

[44]Review Proceedings, supra note 3, at 828.

[45] Picard, 404 U.S. at 274.

[46] Charles Doyle, Congressional Research Service, Federal Habeas Corpus: An Abridged Sketch, 2, (2006).

[47] Id. at 4

[48] Shinn v. Ramirez, No. 20-1009, slip op. at 14 (S. Ct. May 23, 2022).

[49] Murray v. Carrier, 477 U.S. 478, 479 (1986).

[50] Id. at 480.

[51] Id. at 480.

[52] Herrera v. Collins, 506 U.S. 390, at 405 (1993).

[53] Id. at 400.

[54] Jennifer A. Beall, , 73 Ind. L.J. 693, 695 (1998).

[55] Id. at 693.

[56] Id. at 695.

[57] Id. at 696.

[58] Id. at 695.

[59] Shinn v. Ramirez, No. 20-1009, slip op. at 2 (S. Ct. May 23, 2022).

[60] 28 U.S.C. § 2254(e)(2).

[61] Id.

[62] Id.

[63] Review Proceedings, supra note 3, at 848.

[64] Strickland v. Washington, 466 U.S. 668 (1984).

[65] Id. at 687.

[66] Coleman v. Thompson, 501 U.S. 722, 725 (1991).

[67]Shinn v. Ramirez, No. 20-1009, slip op. at 13 (S. Ct. May 23, 2022).

[68] Id. at 1.

[69] Martinez v. Ryan, 566 U.S. 1, 15 (2012).

[70] Id. at 9

[71]  Shinn v. Ramirez, No. 20-1009, slip op. at 9 (S. Ct. May 23, 2022) (Sotomayor, J., dissenting).

[72] Becca Eden, U.S. Supreme Court Issues Landmark Ruling About Representation in post-conviction Proceedings, American Bar Association(Mar. 1, 2012), https://www.americanbar.org/groups/committees/death_penalty_representation/project_press/2012/spring/landmark_ruling/

[73] Id.

[74] Shinn v. Ramirez, No. 20-1009, slip op. at 2 (S. Ct. May 23, 2022).

[75] Id. at 5.

[76] Id. at 7.

[77] Id. at 7.

[78] Id. at 7.

[79] Id. at 7.

[80] Id. at 7. (quoting Calderon, 530 U.S., at 556).

[81] Id. at 14.

[82] Id. at 14.

[83] Id. at 15.

[84] Id. at 17.

[85] Id. at 17.

[86] Id. at 18.

[87] Id. at 16.

[88] Id. at 16.

[89] Id. at 18.

[90] Id. at 18.

[91] Id. at 18.

[92] Id. at 19.

[93] Id. at 22.

[94] Id. at 22.

[95] Id. at 2 (Sotomayor, J., dissenting).

[96] Id. at 12 (Sotomayor, J., dissenting).

[97] Id. at 13 (Sotomayor, J., dissenting).

[98] Id. at 20 (Sotomayor, J., dissenting).

[99] Id. at 11 (Sotomayor, J., dissenting).

[100] Id. at 15 (Sotomayor, J., dissenting).

[101] Id. at 13 (Sotomayor, J., dissenting).

[102] Id. at 13 (Sotomayor, J., dissenting).

[103] Id. at 17 (Sotomayor, J., dissenting).

[104] Id. at 17 (Sotomayor, J., dissenting).

[105] Id. at 14 (Sotomayor, J., dissenting).

[106] Id. at 19 (Sotomayor, J., dissenting).

[107] Id. at 17 (Sotomayor, J., dissenting).

[108] Id. at 18 (Sotomayor, J., dissenting).

[109] Id. at 18 (Sotomayor, J., dissenting).

[110] Id. at 18 (Sotomayor, J., dissenting).

[111] Id. at 18.

[112] Id. at 23.

[113] Id. at 15 (Sotomayor, J., dissenting).

[114] Id. at 18 (Sotomayor, J., dissenting).

[115] Id. at 18 (Sotomayor, J., dissenting).

[116] Id. at 18 (Sotomayor, J., dissenting).

[117] Id. at 17 (Sotomayor, J., dissenting).

[118] Id. at 12 (Sotomayor, J., dissenting).

[119] Id. at 19 (Sotomayor, J., dissenting).

[120] 5-4, supra note 11, at 0:31:31.

[121] Herrera v. Collins, 506 U.S. 390, 427 (1993) (Scalia, J., concurring).

[122]Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, a National Crisis, 57 Hastings L.J. 1031, 1035 (2006)

[123] Id. at 1034.

[124] Emily Olson-Gault, Supreme Court “Guts” Case Law Protecting the Right to Counsel, American Bar Association (May 22, 2022), https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/supreme-court-shinn-ramirez/.

[125]5-4, supra note 11, at 07:35.

[126] Shinn v. Ramirez, No. 20-1009, slip op. at 3 (S. Ct. May 23, 2022) (Sotomayor, J., dissenting).

[127] Clare Gilbert, Beneath the Statistics: The Structural and Systemic Causes of Our Wrongful Conviction Problem, Georgia Innocence Project(Feb. 1, 2022), https://www.georgiainnocenceproject.org/2022/02/01/beneath-the-statistics-the-structural-and-systemic-causes-of-our-wrongful-conviction-problem/.

[128] Nathalie Greenfield, Shinn v. Martinez Ramirez: Making a Mockery of the Right to Effective Assistance of Counsel, Oxford Human Rights Hub(June 27, 2022), https://ohrh.law.ox.ac.uk/shinn-v-martinez-ramirez-making-a-mockery-of-the-right-to-effective-assistance-of-counsel/.

[129] Swarns, supra note 26.

[130] 5-4, supra note 11, at 19:04.

[131] Id. at 23:02.

[132] Shinn, slip op. at 20 (Sotomayor, J., dissenting).

[133] Id. at 10 (Sotomayor, J., dissenting).