In a pair of orders today (in Jones v. Shinn and Ramirez v. Shinn), the Ninth Circuit denied en banc review of panel rulings that allowed Arizona prisoners on death row to pursue their federal habeas claims that their postconviction counsel in state habeas proceedings had provided constitutionally inadequate assistance.
In a dissent from each order, Judge Daniel P. Collins, joined by seven of his colleagues, objects that the panel decisions “disregard controlling Supreme Court precedent by creating a new judge-made exception to the restrictions imposed by the Antiterrorism and Effective Death Penalty Act on the use of new evidence in habeas corpus proceedings.” For any habeas specialists out there, here’s the core of Collins’s explanation (some citations omitted or simplified):
The panels’ reasoning was that, because the Supreme Court has held that ineffective assistance of postconviction counsel may establish “cause to excuse” the separate “procedural default” of failing to raise an ineffective assistance-of-trial-counsel claim in state court, see Martinez v. Ryan (2012), a similar exception should also be recognized to excuse the separate prohibition on new evidence set forth in § 2254(e)(2). But Martinez relied on “the Court’s discretion” to alter judge-made rules of procedural default, and that power to recognize “judge-made exceptions” to judge-made doctrines does not extend to statutory provisions, Ross v. Blake (2016). “There, Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to.” Id. And Congress has been clear in § 2254(e)(2) that it does not want any such new exceptions.