Trevino v. Thaler (11-10189)

argument 11-10189

Trevino v. Thaler

Supreme Court of the United States 1h 0m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the case before the Court and why is it being heard today?

John G. Roberts 0:00

Next this morning in case eleven ten eighteen nine, Trevino versus Thaler.

David Alan Wolfe 0:07

Mr Wolfe? Mr Chief Justice, may it please the court. The Texas Court of Criminal Appeals has said repeatedly, quote As a general rule A defendant should not raise an issue of ineffective assistance of counsel on direct appeal. and has recognised that Texas procedure make it quote virtually impossible for appellate counsel to adequately present such a claim. Those claims are the choices made by the sovereign state of Texas, and it renders this case just like Martinez. This case well illustrates the consequences of that choice. The transcript in this case was not ready available for seven months. That's four and a half months after the trial loss trial court lost jurisdiction on any new trial motion. The state itself argued quote

David Alan Wolfe 1:04

in Sprouse without access to that record. New counsel would have little basis for attacking performance of trial counsel.

Ruth Bader Ginsburg 1:14

Suppose the state's position were not, as you accurately stated, the Texas Court of Criminal Appeal. It didn't say Collateral review is the preferred route. It said Either way will do. You can bring it up on direct appeal or you can bring it up on collateral. Would you say that Mart Martinez applies in that situation or does it depend on having this the state highest court in the matter saying this is the preferred way to go?

David Alan Wolfe 1:53

Texas systematically channels, ineffective assistance claims to collateral to state habeas.

Ruth Bader Ginsburg 2:01

And if it didn't, if it just said You can bring it up on direct, but we realize these limitations because the transcript won't be ready. so you can wait and bring it up on habeas. I'm just asking how far the the rule that you would like us to adopt, you say this is just like Martinus, is that where you would draw the line that the the state highest court has to say we prefer this matter to be brought up on collateral review.

David Alan Wolfe 2:36

It's not just them saying it in words, but it's also saying it in the legislation and in the rules that Tex that the state of Texas has adopted. In order to expand the record in a Wiggins claim, which is what's the basis of Mr. Trevino's claim, in order to expand that record, you have a thirty day window to file the motion for new trial and seventy-five days, seventy-five days to have the a hearing on it, or else the court loses r uh jurisdiction by operation of law.

John G. Roberts 3:11

The district court, the trial court.

David Alan Wolfe 3:13

That's correct. And so you couldn't expand the record. And in order to uh prov present Wigan's claim, especially

John G. Roberts 3:25

Has the Texas have the Texas appellate courts ever sent a a claim back for an evidentiary hearing?

David Alan Wolfe 3:33

After seventy-five days. the co the district court loses jur jurisdiction and I realise there are some jurisdictions around the country that have that opportunity. But Texas has a finality where there is no provision to expand the record after that seventy-five day period.

John G. Roberts 3:54

So as far as you know the court the appellate court's never done that?

David Alan Wolfe 3:57

That's correct.

John G. Roberts 3:57

Okay. Why does Texas afford uh uh people in your client's position a new appellate counsel?

David Alan Wolfe 4:05

Well there's two c actually Texas has a dual track system. It was developed in nineteen ninety five, a year before the federal system was developed in EDPA. And the concept and the reason for it, the rationale, was to expedite these type of c claims, especially in death penalty claims. uh under section eleven point zero seven one. Uh but the r the d and the purpose is that there's a two councils that are appointed. One council is appointed to handle the record based claims, and that's done on direct appeal. The other counsel is appointed in all cases, there's no question, on habeas. And that attorney, that counsel, is appointed with the understanding that he's going to have the time to do the extra record-based claims.

David Alan Wolfe 4:54

In a case like this, the record wasn't even prepared for seven months after the date of the judgment.

Elena Kagan 5:00

Council, I I don't know that you've answered Justice Ginsburg's question. Um and so I'm going to take it up. Because it interests me. Let's assume, as she did in her hypothetical, that a state says doesn't have any case law like Texas does that says we prefer you to go that way.