Should we be worried about the number of ineffective counsel claims that are making their way through the circuits this year?
The Fifth Circuit Court of Appeals issued an opinion in yet another ineffective counsel case this week, finding that a petitioner had received the benefit of his Sixth Amendment right to counsel, even though his lawyer barely satisfied that standard.
Robert Allen Rabe was sentenced to 48 years for aggravated robbery with a deadly weapon after a jury found that he robbed a liquor store at gunpoint. Rabe's alibi was that, at the time of the robbery, he was working with Jesse Diaz on an air conditioner for Vincent Avalos at Avalos's house.
Rabe's first beef with his court-appointed attorney, Michael Smith, was that Rabe gave Smith the names of Avalos, Avalos's wife, and Diaz as potential alibi witnesses, but that Smith did contact any of them to testify at trial.
After the conviction, but before sentencing, Rabe's sister watched the surveillance video from the liquor store and noticed that the suspect alleged to be Rabe--who has tattoos on both of his arms--did not appear to have tattoos. Rabe's second problem with Smith? Smith didn't raise the tattoo issue until Rabe's sentencing.
In his state post-conviction petition, Rabe alleged that Smith was ineffective because he failed to subpoena Dias as a witness during Rabe's trial. The state affirmed Rabe's conviction.
Next, Rabe filed a federal habeas petition, arguing that Smith was ineffective in failing to secure three alibi witnesses and failing to investigate the tattoo discrepancy from the surveillance video.
Despite the fact that even Smith admits that he "dropped the ball" with the tattoo defense, federal review of a state prisoner's habeas petition claims is limited to the record that was before the state court that adjudicated the claim on the merits. By that standard, the only issue the Fifth Circuit could consider was whether Smith was not ineffective for failing to subpoena Diaz or secure his presence at the trial.
The Fifth Circuit Court of Appeals agreed with the state court that Smith was not ineffective.
To the outside observer, it looks like Rabe got a raw deal. Maybe he's guilty, but he at least deserved a defense that included an alibi witness and a nod to the fact that the robber in the surveillance tape did not appear to have tattoos on his forearms as Rabe does.
No, these issues were not raised in Rabe's state appeal, but that seems to indicate that Rabe's counsel for the state appeal may have also been ineffective, elevating Rabe's ineffective counsel conundrum to meta status.
We'll be curious to see if the Supreme Court's opinion in Martinez v. Ryan affects Rabe's appeals. As the Sixth Amendment is currently interpreted, appellants are not guaranteed the assistance of effective counsel in post-conviction relief petitions. Should the Supreme Court extend the Sixth Amendment counsel guarantee to post-conviction relief, we suspect that Rabe will have another day in court.