Nino’s dissent in Martinez v. Ryan is a doozie. It begins:

Let me get this straight: Out of concern for the values offederalism; to preserve the ability of our States to provide prompt justice; and in light of our longstanding jurisprudence holding that there is no constitutional right tocounsel in state collateral review; the Court, in what it portrays as an admirable exercise of judicial restraint,abstains from holding that there is a constitutional right to counsel in initial-review state habeas. After all, that would have meant, in a case such as the one before us, that failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, would constitute cause for excusing proceduraldefault. See Strickland v. Washington, 466 U. S. 668 (1984). Instead of taking that radical step, the Court holds that, for equitable reasons, in a case such as the one before us, failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, constitutes cause for excusing proceduraldefault. The result, of course, is precisely the same.

 

Ah, but perhaps the explanation of why the Court’saction today amounts to praiseworthy self-restraint is this:It pronounces this excuse from the usual rule of procedural default only in initial-review state habeas raising anineffective-assistance-of-trial-counsel claim. But it could have limited its invention of a new constitutional right to collateral-review counsel in precisely the same fashion—and with precisely the same consequences. Moreover, no one really believes that the newly announced “equitable” rule will remain limited to ineffective-assistance-of-trialcounsel cases. There is not a dime’s worth of difference in principle between those cases and many other cases inwhich initial state habeas will be the first opportunity fora particular claim to be raised: claims of “newly discovered” prosecutorial misconduct, for example, see Brady v. Maryland, 373 U. S. 83 (1963), claims based on “newly discovered” exculpatory evidence or “newly discovered” impeachment of prosecutorial witnesses, and claims asserting ineffective assistance of appellate counsel. The Court’s soothing assertion, ante, at 14, that its holding “addresses only the constitutional claims presented in this case,” insults the reader’s intelligence.

Moreover, even if today’s holding could (against alllogic) be restricted to ineffective-assistance-of-trial-counsel claims, it would have essentially the same practical consequences as a holding that collateral-review counsel isconstitutionally required. Despite the Court’s suggestionto the contrary, see ante, at 13, the rule it adopts calls into question the common state practice of not appointingcounsel in all first collateral proceedings, see ante, at 11–
12. It does not, to be sure, call into question the lawfulness of that practice; only its sanity. For if the prisonergoes through state collateral proceedings without counsel, and fails to raise an ineffective-assistance-of-trial-counsel claim which is, because of that failure, defaulted, the default will not preclude federal habeas review of the merits of that claim. And since ineffective assistance of trial counsel is a monotonously standard claim on federalhabeas (has a duly convicted defendant ever been effectively represented?), whoever advises the State would himself be guilty of ineffective assistance if he did not counsel the appointment of state-collateral-review counsel in all cases—lest the failure to raise that claim in the state proceedings be excused and the State be propelled into federal habeas review of the adequacy of trial-court representation that occurred many years ago.2 Which is to say that the Court’s pretended avoidance of requiring States to appoint collateral-review counsel is a sham.

…

In practical effect, that may not make much difference in noncapital cases (except forthe squandering of state taxpayers’ money): The defendantwill stay in prison, continuing to serve his sentence, while federal habeas review grinds on. But in capital cases, it will effectively reduce the sentence, giving the defendant asmany more years to live, beyond the lives of the innocent victims whose life he snuffed out, as the process of federal habeas may consume. I guarantee that an assertion of ineffective assistance of trial counsel will be made in all capital cases from this date on, causing (because of today’sholding) execution of the sentence to be deferred untileither that claim, or the claim that appointed counsel wasineffective in failing to make that claim, has worked itsway through the federal system.

I wonder if he would start his dissent in the SSM in the same fashion?

I’d be willing to wager that Roberts and Alito joined on to moderate the opinion, and avoid the need to recognize the constitutional issue.

Doug Berman had this to say:

In an apparent (and reasonable?) effort to avoid a major constitutional ruling concerning the Sixth Amendment right to counsel, Justice Kennedy today, writing for seven Justices in Martinez v. Ryan (opinion here), adopts “a more narrow, but still dispositive” rule that a “federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding.”  For a variety of reasons, I think this way of resolving Martinez v. Ryan is designed to try to ensure the ruling ends up not being especially consequential.