(Slip Opinion) OCTOBER TERM, 2016 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

DAVILA v. DAVIS, DIRECTOR, TEXAS DEPARTMENT 

OF CRIMINAL JUSTICE, CORRECTIONAL
 

INSTITUTIONS DIVISION 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 16–6219. Argued April 24, 2017—Decided June 26, 2017 

In petitioner’s state capital murder trial, the trial court overruled counsel’s objection to a proposed jury instruction and submitted the instruction to the jury, which convicted petitioner. Appellate counsel

did not challenge the jury instruction, and petitioner’s conviction and 

sentence were affirmed. Petitioner’s state habeas counsel did not 

raise the instructional issue or challenge appellate counsel’s failure

to raise it on appeal, and the state habeas court denied relief. Petitioner then sought federal habeas relief. Invoking Martinez v. Ryan, 

566 U. S. 1, and Trevino v. Thaler, 569 U. S. 413, petitioner argued 

that his state habeas counsel’s ineffective assistance in failing to 

raise an ineffective-assistance-of-appellate-counsel claim provided 

cause to excuse the procedural default of that claim. The District 

Court denied relief, concluding that Martinez and Trevino apply exclusively to ineffective-assistance-of-trial-counsel claims. The Fifth 

Circuit denied a certificate of appealability. 

Held: The ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of ineffective-assistanceof-appellate-counsel claims. Pp. 4–16.

(a) In Coleman v. Thompson, 501 U. S. 722, this Court held that attorney error committed in the course of state postconviction proceedings—for which the Constitution does not guarantee the right to 

counsel—cannot supply cause to excuse a procedural default that occurs in those proceedings. Id., at 755. In Martinez, the Court announced an “equitable . . . qualification” of Coleman’s rule that applies where state law requires a claim of ineffective assistance of trial 
 

2 DAVILA v. DAVIS 

Syllabus 

counsel to be raised in an “initial-review collateral proceeding,” rather than on direct appeal. 566 U. S., at 16, 17. In those situations, 

“a procedural default will not bar a federal habeas court from hearing 

a substantial claim of ineffective assistance at trial if” the default results from the ineffective assistance of the prisoner’s counsel in the 

collateral proceeding. Id., at 17. The Court clarified in Trevino that 

Martinez’s exception also applies where the State’s “procedural 

framework, by reason of its design and operation, makes it unlikely

in a typical case that a defendant will have a meaningful opportunity 

to raise” the claim on direct appeal. 569 U. S., at ___. Pp. 4–7. 

(b) This Court declines to extend the Martinez exception to allow a

federal court to hear a substantial, but procedurally defaulted, claim

of appellate ineffectiveness when a prisoner’s state postconviction 

counsel provides ineffective assistance by failing to raise it. Pp. 7–16.

(1) Martinez itself does not support extending this exception to

new categories of procedurally defaulted claims. The Martinez Court 

did not purport to displace Coleman as the general rule governing 

procedural default. Rather, it “qualifie[d] Coleman by recognizing a

narrow exception,” 566 U. S., at 9, and made clear that “[t]he rule of 

Coleman governs in all but th[ose] limited circumstances,” id., at 16. 

Applying Martinez’s highly circumscribed, equitable exception to new

categories of procedurally defaulted claims would do precisely what

this Court disclaimed in that case. P. 7.

 (2) Martinez’s underlying rationale does not support extending 

its exception to appellate-ineffectiveness claims. Petitioner argues 

that his situation is analogous to Martinez, where the Court expressed concern that trial-ineffectiveness claims might completely

evade review. The Court in Martinez made clear, however, that it exercised its equitable discretion in view of the unique importance of 

protecting a defendant’s trial rights, particularly the right to effective 

assistance of trial counsel. Declining to expand Martinez to the appellate-ineffectiveness context does no more than respect that judgment. Nor is petitioner’s rule required to ensure that meritorious 

claims of trial error receive review by at least one state or federal 

court—Martinez’s chief concern. See 566 U. S., at 10, 12. A claim of 

trial error, preserved by trial counsel but not raised by counsel on

appeal, will have been addressed by the trial court. If an unpreserved trial error was so obvious that appellate counsel was constitutionally required to raise it on appeal, then trial counsel likely provided ineffective assistance by failing to raise it at trial. In that 

circumstance, the prisoner likely could invoke Martinez or Coleman 

to obtain review of trial counsel’s failure to object. Similarly, if the

underlying, defaulted claim of trial error was ineffective assistance of

trial counsel premised on something other than the failure to object, 
 

 

 

 

Cite as: 582 U. S. ____ (2017) 3 

Syllabus 

then Martinez and Coleman again already provide a vehicle for obtaining review of that error in most circumstances. Pp. 7–11.

(3) The equitable concerns addressed in Martinez do not apply to 

appellate-ineffectiveness claims. In Martinez and Trevino, the States 

deliberately chose to make postconviction process the only means for 

raising trial-ineffectiveness claims. The Court determined that it 

would be inequitable to refuse to hear a defaulted claim when the 

State had channeled that claim to a forum where the prisoner might 

lack the assistance of counsel in raising it. The States have not made 

a similar choice with respect to appellate-ineffectiveness claims—nor

could they, since such claims generally cannot be presented until after the termination of direct appeal. The fact that appellateineffectiveness claims are considered in proceedings in which counsel 

is not constitutionally guaranteed is a function of the nature of the 

claim, not of the States’ deliberate choices. Pp. 11–12.

(4) The Martinez decision was also grounded in part on the belief

that its narrow exception was unlikely to impose significant systemic 

costs. See 566 U. S., at 15–16. But adopting petitioner’s proposed extension could flood the federal courts with defaulted appellateineffectiveness claims, and potentially serve as a gateway to federal 

review of a host of defaulted claims of trial error. It would also aggravate the harm to federalism that federal habeas review of state

convictions necessarily causes. Not only would these burdens on the

federal courts and federal system be severe, but the systemic benefit

would be small, as claims heard in federal court solely by virtue of

petitioner’s proposed rule would likely be largely meritless. Pp. 12– 

16. 

650 Fed. Appx. 860, affirmed. 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, ALITO, and GORSUCH, JJ., joined. BREYER, J., filed a 

dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., 

joined. 
 

 

_________________ 

_________________ 

 

 

Cite as: 582 U. S. ____ (2017) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 16–6219 

ERICK DANIEL DAVILA, PETITIONER v. LORIE DAVIS, 

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
 

JUSTICE, CORRECTIONAL INSTITUTIONS 

DIVISION
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[June 26, 2017]

 JUSTICE THOMAS delivered the opinion of the Court. 

Federal habeas courts reviewing convictions from state

courts will not consider claims that a state court refused to 

hear based on an adequate and independent state procedural ground. A state prisoner may be able to overcome

this bar, however, if he can establish “cause” to excuse the 

procedural default and demonstrate that he suffered 

actual prejudice from the alleged error. An attorney error 

does not qualify as “cause” to excuse a procedural default 

unless the error amounted to constitutionally ineffective

assistance of counsel. Because a prisoner does not have a 

constitutional right to counsel in state postconviction

proceedings, ineffective assistance in those proceedings

does not qualify as cause to excuse a procedural default.

See Coleman v. Thompson, 501 U. S. 722 (1991).

In Martinez v. Ryan, 566 U. S. 1 (2012), and Trevino v. 

Thaler, 569 U. S. 413 (2013), this Court announced a

narrow exception to Coleman’s general rule. That exception treats ineffective assistance by a prisoner’s state 
 

2 DAVILA v. DAVIS 

Opinion of the Court 

postconviction counsel as cause to overcome the default of 

a single claim—ineffective assistance of trial counsel—in a

single context—where the State effectively requires a

defendant to bring that claim in state postconviction

proceedings rather than on direct appeal. The question in

this case is whether we should extend that exception to 

allow federal courts to consider a different kind of defaulted 

claim—ineffective assistance of appellate counsel. We 

decline to do so. 

I 

A 

On April 6, 2008, a group of family and friends gathered 

at Annette Stevenson’s home to celebrate her granddaughter’s birthday. Petitioner Erick Daniel Davila, believing

he had seen a member of a rival street gang at the celebration, fired a rifle at the group while they were eating cake 

and ice cream. He shot and killed Annette and her 5-yearold granddaughter Queshawn, and he wounded three 

other children and one woman. 

After the police arrested petitioner, he confessed to the

killings. He stated that he “wasn’t aiming at the kids or 

the woman,” but that he was trying to kill Annette’s son 

(and Queshawn’s father) Jerry Stevenson and the other 

“guys on the porch.” App. 38. The other “guys on the 

porch” were, apparently, women. 

The State indicted petitioner for capital murder under

Tex. Penal Code Ann. §19.03(a)(7)(A) (West 2016), which

makes it a capital crime to “murde[r] more than one person . . . during the same criminal transaction.” In response to the jury’s request for clarification during deliberations, the trial court proposed instructing the jury on

transferred intent. Under that doctrine, the jury could

find petitioner guilty of murder if it determined that he

intended to kill one person but instead killed a different 

person. Petitioner’s counsel objected to the additional 
 

Cite as: 582 U. S. ____ (2017) 3 

Opinion of the Court 

instruction, arguing that the trial judge should “wait” to

submit it “until the jury indicates that they can’t reach . . . 

a resolution.” App. 51. The trial court overruled the 

objection and submitted the instruction to the jury. The 

jury convicted petitioner of capital murder, and the trial

court sentenced petitioner to death. 

B 

Petitioner appealed his conviction and sentence. Although his appellate counsel argued that the State presented insufficient evidence to show that he acted with the 

requisite intent, counsel did not challenge the instruction 

about transferred intent. The Texas Court of Criminal 

Appeals affirmed petitioner’s conviction and sentence. 

Davila v. State, 2011 WL 303265 (Jan. 26, 2011), cert. 

denied, 565 U. S. 885 (2011). 

Petitioner next sought habeas relief in Texas state 

court. His counsel did not challenge the instruction about 

transferred intent, nor did he challenge the failure of his

appellate counsel to raise the alleged instructional error

on direct appeal. The Texas Court of Criminal Appeals 

denied relief. Ex parte Davila, 2013 WL 1655549 (Apr. 17,

2013), cert. denied, 571 U. S. ___ (2013). 

C 

Petitioner then sought habeas relief in Federal District 

Court under 28 U. S. C. §2254. As relevant here, he argued that his appellate counsel provided ineffective assistance by failing to challenge the jury instruction about

transferred intent. Petitioner conceded that he had failed 

to raise his claim of ineffective assistance of appellate 

counsel in his state habeas petition, but argued that the 

failure was the result of his state habeas counsel’s ineffective assistance. Petitioner invoked this Court’s decisions 

in Martinez and Trevino to argue that his state habeas

attorney’s ineffective assistance provided cause to excuse 
 

 

4 DAVILA v. DAVIS 

Opinion of the Court 

the procedural default of his claim of ineffective assistance

of appellate counsel.

The District Court denied petitioner’s §2254 petition. It 

concluded that Martinez and Trevino did not supply cause 

to excuse the procedural default of petitioner’s claim of

ineffective assistance of appellate counsel because those 

decisions applied exclusively to claims of ineffective assistance of trial counsel. See Davila v. Stephens, 2015 WL 

1808689, *20 (ND Tex., Apr. 21, 2015). The Court of 

Appeals for the Fifth Circuit denied a certificate of appealability on the same ground. 650 Fed. Appx. 860, 867– 

868 (2016). Petitioner then sought a writ of certiorari, 

asking us to reverse the Fifth Circuit on the ground that 

Martinez and Trevino should be extended to claims of 

ineffective assistance of appellate counsel. We granted 

certiorari, 580 U. S. ___ (2017), and now affirm. 

II 

Our decision in this case is guided by two fundamental

tenets of federal review of state convictions. First, a state 

prisoner must exhaust available state remedies before

presenting his claim to a federal habeas court. 

§2254(b)(1)(A). The exhaustion requirement is designed to

avoid the “unseemly” result of a federal court “upset[ting]

a state court conviction without” first according the state 

courts an “opportunity to . . . correct a constitutional violation,” Rose v. Lundy, 455 U. S. 509, 518 (1982) (internal

quotation marks omitted). 

Second, a federal court may not review federal claims

that were procedurally defaulted in state court—that is,

claims that the state court denied based on an adequate 

and independent state procedural rule. E.g., Beard v. 

Kindler, 558 U. S. 53, 55 (2009). This is an important

“corollary” to the exhaustion requirement. Dretke v. Haley, 541 U. S. 386, 392 (2004). “Just as in those cases in 

which a state prisoner fails to exhaust state remedies, a 
 

Cite as: 582 U. S. ____ (2017) 5 

Opinion of the Court 

habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has 

deprived the state courts of an opportunity to address” the

merits of “those claims in the first instance.” Coleman, 

501 U. S., at 731–732.1 The procedural default doctrine 

thus advances the same comity, finality, and federalism 

interests advanced by the exhaustion doctrine. See 

McCleskey v. Zant, 499 U. S. 467, 493 (1991). 

A state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show 

“cause” to excuse his failure to comply with the state

procedural rule and “actual prejudice resulting from the 

alleged constitutional violation.” Wainwright v. Sykes, 433 

U. S. 72, 84 (1977); Coleman, supra, at 750. To establish 

“cause”—the element of the doctrine relevant in this 

case—the prisoner must “show that some objective factor

external to the defense impeded counsel’s efforts to comply

with the State’s procedural rule.” Murray v. Carrier, 477 

U. S. 478, 488 (1986). A factor is external to the defense if 

it “cannot fairly be attributed to” the prisoner. Coleman, 

supra, at 753. 

—————— 

1The Fifth Circuit treats unexhausted claims as procedurally defaulted if “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now 

find the claims procedurally barred.” Bagwell v. Dretke, 372 F. 3d 748, 

755 (2004) (internal quotation marks omitted); cf. Coleman, 501 U. S., 

at 735, n. Relying on this doctrine, the District Court concluded that 

petitioner’s federal claim was procedurally defaulted (even though a

state court had never actually found it procedurally barred) because 

Texas law would likely bar a Texas court from deciding the claim on the 

merits if petitioner were to present it in a successive habeas petition. 

Davila v. Stephens, 2015 WL 1808689, *19–*20 (ND Tex., Apr. 21, 

2015) (citing Davila v. Stephens, 2014 WL 5879879, *2 (ND Tex., Nov. 

10, 2014)); see also Davila v. Stephens, 2014 WL 6057907, *2 (ND Tex., 

Nov. 10, 2014). Petitioner did not seek a certificate of appealability

regarding that holding, and neither petitioner nor the State disputes in

this Court that the claim was procedurally defaulted. Accordingly, we 

assume that it was procedurally defaulted for purposes of this case. 
 

6 DAVILA v. DAVIS 

Opinion of the Court 

It has long been the rule that attorney error is an objective external factor providing cause for excusing a procedural default only if that error amounted to a deprivation 

of the constitutional right to counsel. See Edwards v. 

Carpenter, 529 U. S. 446, 451 (2000). An error amounting

to constitutionally ineffective assistance is “imputed to the 

State” and is therefore external to the prisoner. Murray, 

supra, at 488. Attorney error that does not violate the

Constitution, however, is attributed to the prisoner “under

well-settled principles of agency law.” Coleman, supra, at 

754. It follows, then, that in proceedings for which the

Constitution does not guarantee the assistance of counsel 

at all, attorney error cannot provide cause to excuse a

default. Thus, in Coleman, this Court held that attorney 

error committed in the course of state postconviction 

proceedings—for which the Constitution does not guarantee the right to counsel, see Murray v. Giarratano, 492 

U. S. 1 (1989) (plurality opinion)—cannot supply cause to

excuse a procedural default that occurs in those proceedings. 501 U. S., at 755. 

In Martinez, this Court announced a narrow, “equitable

. . . qualification” of the rule in Coleman that applies 

where state law requires prisoners to raise claims of ineffective assistance of trial counsel “in an initial-review 

collateral proceeding,” rather than on direct appeal. Martinez, 566 U. S., at 16, 17. It held that, in those situations, 

“a procedural default will not bar a federal habeas court 

from hearing a substantial claim of ineffective assistance 

at trial if ” the default results from the ineffective assistance of the prisoner’s counsel in the collateral proceeding. 

Id., at 17. In Trevino, the Court clarified that this exception applies both where state law explicitly prohibits 

prisoners from bringing claims of ineffective assistance of

trial counsel on direct appeal and where the State’s “procedural framework, by reason of its design and operation, 

makes it unlikely in a typical case that a defendant will 
 

 

 

Cite as: 582 U. S. ____ (2017) 7 

Opinion of the Court 

have a meaningful opportunity to raise” that claim on

direct appeal. 569 U. S., at ___ (slip op., at 14). 

III 

Petitioner asks us to extend Martinez to allow a federal 

court to hear a substantial, but procedurally defaulted,

claim of ineffective assistance of appellate counsel when a

prisoner’s state postconviction counsel provides ineffective 

assistance by failing to raise that claim. We decline to do 

so. 

A 

On its face, Martinez provides no support for extending 

its narrow exception to new categories of procedurally

defaulted claims. Martinez did not purport to displace 

Coleman as the general rule governing procedural default.

Rather, it “qualifie[d] Coleman by recognizing a narrow 

exception” that applies only to claims of “ineffective assistance of counsel at trial” and only when, “under state law,” 

those claims “must be raised in an initial-review collateral 

proceeding.” Martinez, supra, at 9, 17. And Trevino merely

clarified that the exception applies whether state law 

explicitly or effectively forecloses review of the claim on 

direct appeal. 569 U. S., at ___ (slip op. at 2, 13). In all 

but those “limited circumstances,” Martinez made clear 

that “[t]he rule of Coleman governs.” 566 U. S., at 16. 

Applying Martinez’s highly circumscribed, equitable exception to new categories of procedurally defaulted claims

would thus do precisely what this Court disclaimed in 

Martinez: Replace the rule of Coleman with the exception 

of Martinez. 

B 

Petitioner also finds no support in the underlying rationale of Martinez. Petitioner’s primary argument is that 

his claim of ineffective assistance of appellate counsel

might never be reviewed by any court, state or federal, 
 

8 DAVILA v. DAVIS 

Opinion of the Court 

without expanding the exception to the rule in Coleman. 

He argues that this situation is analogous to Martinez, 

where the Court expressed that same concern about

claims of ineffective assistance of trial counsel. But the 

Court in Martinez was principally concerned about trial 

errors—in particular, claims of ineffective assistance of 

trial counsel. Ineffective assistance of appellate counsel is

not a trial error. Nor is petitioner’s rule necessary to

ensure that a meritorious trial error (of any kind) receives 

review. 

1 

Petitioner argues that allowing a claim of ineffective

assistance of appellate counsel to evade review is just as 

concerning as allowing a claim of ineffective assistance of 

trial counsel to evade review. Brief for Petitioner 12; see 

also id., at 18–26. We do not agree. 

The criminal trial enjoys pride of place in our criminal

justice system in a way that an appeal from that trial does 

not. The Constitution twice guarantees the right to a

criminal trial, see Art. III, §2; Amdt. 6, but does not guarantee the right to an appeal at all, Halbert v. Michigan, 

545 U. S. 605, 610 (2005). The trial “is the main event at 

which a defendant’s rights are to be determined,” McFarland v. Scott, 512 U. S. 849, 859 (1994) (internal quotation

marks omitted), “and not simply a tryout on the road to

appellate review,” Freytag v. Commissioner, 501 U. S. 868, 

895 (1991) (Scalia, J., concurring in part and concurring in

judgment) (internal quotation marks omitted). And it is 

where the stakes for the defendant are highest, not least 

because it is where a presumptively innocent defendant is 

adjudged guilty, see Ross v. Moffitt, 417 U. S. 600, 610 

(1974); Wainwright, 433 U. S., at 90, and where the trial 

judge or jury makes factual findings that nearly always

receive deference on appeal and collateral review, see 

Jackson v. Virginia, 443 U. S. 307, 318–319 (1979); see 
 

Cite as: 582 U. S. ____ (2017) 9 

Opinion of the Court 

also Cavazos v. Smith, 565 U. S. 1, 2 (2011) ( per curiam)

(under deferential standard of review, “judges will sometimes encounter convictions that they believe to be mistaken, but that they must nevertheless uphold”).

The Court in Martinez made clear that it exercised its 

equitable discretion in view of the unique importance of

protecting a defendant’s trial rights, particularly the right

to effective assistance of trial counsel. As the Court explained, “the limited nature” of its holding “reflect[ed] the

importance of the right to the effective assistance of trial 

counsel,” which is “a bedrock principle in our justice system.” 566 U. S., at 12, 16 (emphasis added). In declining 

to expand the Martinez exception to the distinct context of

ineffective assistance of appellate counsel, we do no more

than respect that judgment. 

2 

Petitioner’s rule also is not required to ensure that

meritorious claims of trial error receive review by at least

one state or federal court—the chief concern identified by

this Court in Martinez. See id., at 10, 12. Martinez was 

concerned that a claim of trial error—specifically, ineffective assistance of trial counsel—might escape review in a

State that required prisoners to bring the claim for the 

first time in state postconviction proceedings rather than

on direct appeal. Because it is difficult to assess a trial 

attorney’s performance until the trial has ended, a trial 

court ordinarily will not have the opportunity to rule on

such a claim. And when the State requires a prisoner to

wait until postconviction proceedings to raise the claim, 

the appellate court on direct appeal also will not have the 

opportunity to review it. If postconviction counsel then

fails to raise the claim, no state court will ever review it. 

Finally, because attorney error in a state postconviction

proceeding does not qualify as cause to excuse procedural 

default under Coleman, no federal court could consider the 
 

 

10 DAVILA v. DAVIS 

Opinion of the Court 

claim either. 

Claims of ineffective assistance of appellate counsel,

however, do not pose the same risk that a trial error—of

any kind—will escape review altogether, at least in a way 

that could be remedied by petitioner’s proposed rule. This 

is true regardless of whether trial counsel preserved the

alleged error at trial. If trial counsel preserved the error 

by properly objecting, then that claim of trial error “will

have been addressed by . . . the trial court.” Martinez, 566 

U. S., at 11. A claim of appellate ineffectiveness premised 

on a preserved trial error thus does not present the same

concern that animated the Martinez exception because at 

least “one court” will have considered the claim on the 

merits. Ibid.; see also Coleman, 501 U. S., at 755–756. 

If trial counsel failed to preserve the error at trial, then

petitioner’s proposed rule ordinarily would not give the 

prisoner access to federal review of the error, anyway.

Effective appellate counsel should not raise every nonfrivolous argument on appeal, but rather only those arguments most likely to succeed. Smith v. Murray, 477 U. S. 

527, 536 (1986); Jones v. Barnes, 463 U. S. 745, 751–753 

(1983). Declining to raise a claim on appeal, therefore, is 

not deficient performance unless that claim was plainly 

stronger than those actually presented to the appellate 

court. See Smith v. Robbins, 528 U. S. 259, 288 (2000). In 

most cases, an unpreserved trial error will not be a plainly

stronger ground for appeal than preserved errors. See 2 

B. Means, Postconviction Remedies §35:19, p. 627, and 

n. 16 (2016). Thus, in most instances in which the trial 

court did not rule on the alleged trial error (because it was

not preserved), the prisoner could not make out a substantial claim of ineffective assistance of appellate counsel and

therefore could not avail himself of petitioner’s expanded 

Martinez exception.

Adopting petitioner’s proposed rule would be unnecessary to ensure review of a claim of trial error even when a 
Cite as: 582 U. S. ____ (2017) 11 

Opinion of the Court 

prisoner has a legitimate claim of ineffective assistance of

appellate counsel based on something other than a preserved trial error. If an unpreserved trial error was so

obvious that appellate counsel was constitutionally required to raise it on appeal, then trial counsel likely provided ineffective assistance by failing to object to it in the 

first instance. In that circumstance, the prisoner likely 

could invoke Martinez or Coleman to obtain review of trial 

counsel’s failure to object. Similarly, if the underlying,

defaulted claim of trial error was ineffective assistance of 

trial counsel premised on something other than the failure 

to object, then Martinez and Coleman again already provide a vehicle for obtaining review of that error in most

circumstances. Petitioner’s proposed rule is thus unnecessary for ensuring that trial errors are reviewed by at least 

one court. 

C 

The Court in Martinez also was responding to an equitable consideration that is unique to claims of ineffective 

assistance of trial counsel and accordingly inapplicable to 

claims of ineffective assistance of appellate counsel. In 

Martinez, the State “deliberately cho[se] to move trialineffectiveness claims outside of the direct-appeal process, 

where counsel is constitutionally guaranteed,” into the 

postconviction review process, where we have never held 

that the Constitution guarantees a right to counsel. 566 

U. S., at 13; id., at 9. By doing so, “the State significantly 

diminishe[d] prisoners’ ability to file such claims.” Id., at 

13. Similarly, in Trevino, the State had chosen a procedural framework pursuant to which collateral review was, 

“as a practical matter, the onl[y] method for raising an

ineffective-assistance-of-trial-counsel claim.” 569 U. S., at 

___ (slip op., at 13). 

Although this Court acknowledged in Martinez that 

there was nothing inappropriate about the State’s choice, 
 

 

12 DAVILA v. DAVIS 

Opinion of the Court 

it explained that the choice was “not without consequences

for the State’s ability to assert a procedural default” in 

subsequent federal habeas proceedings. 566 U. S., at 13. 

Specifically, the Court concluded that it would be inequitable to refuse to hear a defaulted claim of ineffective 

assistance of trial counsel when the State had channeled 

that claim to a forum where the prisoner might lack the 

assistance of counsel in raising it. 

The States have not made a similar choice with respect

to claims of ineffective assistance of appellate counsel—

nor could they. By their very nature, such claims generally cannot be presented until after the termination of direct 

appeal. Put another way, they necessarily must be heard 

in collateral proceedings, where counsel is not constitutionally guaranteed. The fact that claims of appellate

ineffectiveness are considered in proceedings in which 

counsel is not constitutionally guaranteed is a function of 

the nature of the claim, not of the State’s “deliberat[e] 

cho[ice] to move . . . claims outside of the direct-appeal

process.” Ibid. The equitable concerns raised in Martinez 

therefore do not apply. 

D 

Finally, the Court in Martinez grounded its decision in 

part on the belief that its narrow exception was unlikely to 

impose significant systemic costs. See id., at 15–16. The 

same cannot be said of petitioner’s proposed extension. 

1 

Adopting petitioner’s argument could flood the federal 

courts with defaulted claims of appellate ineffectiveness. 

For one thing, every prisoner in the country could bring 

these claims. Martinez currently applies only to States

that deliberately choose to channel claims of ineffective

assistance of trial counsel into collateral proceedings. See, 

e.g., Lee v. Corsini, 777 F. 3d 46, 60–61 (CA1 2015) (Mar-
 

 

Cite as: 582 U. S. ____ (2017) 13 

Opinion of the Court 

tinez and Trevino do not apply to Massachusetts); Henness 

v. Bagley, 766 F. 3d 550, 557 (CA6 2014) (Martinez does 

not apply to Ohio). If we applied Martinez to claims of 

appellate ineffectiveness, however, we would bring every 

State within Martinez’s ambit, because claims of appellate

ineffectiveness necessarily must be heard in collateral

proceedings. See supra, at 12. 

Extending Martinez to defaulted claims of ineffective 

assistance of appellate counsel would be especially troublesome because those claims could serve as the gateway

to federal review of a host of trial errors, while Martinez 

covers only one trial error (ineffective assistance of trial

counsel). If a prisoner can establish ineffective assistance 

of trial counsel under Martinez, he ordinarily is entitled to

a new trial. See United States v. Morrison, 449 U. S. 361, 

364–365 (1981); see also Hagens v. State, 979 S. W. 2d 

788, 792 (Tex. App. 1998). But if he cannot, Martinez 

provides no avenue for litigating other defaulted trial 

errors.2

 An expanded Martinez exception, however, would mean 

that any defaulted trial error could result in a new trial. 

In Carpenter, this Court held that, when a prisoner can

show cause to excuse a defaulted claim of ineffective assistance of appellate counsel, he can in turn rely on that

claim as cause to litigate an underlying claim of trial error

that was defaulted due to appellate counsel’s ineffectiveness. 529 U. S., at 453. Expanding Martinez as petitioner 

—————— 

2The dissent argues that Martinez already provides a gateway to the

review of underlying trial errors no differently than would petitioner’s 

proposed rule. See post, at 7 (opinion of BREYER, J.). That is not so. If 

a prisoner succeeds on his claim of ineffective assistance of trial counsel 

under Martinez, the federal habeas court would not need to consider 

any other claim of trial error since the successful claim of trial ineffectiveness—unlike a successful claim of ineffective assistance of appellate

counsel—entitles the prisoner to a new trial. See 7 W. LaFave, J. 

Israel, N. King, & O. Kerr, Criminal Procedure §28.4(d), p. 258, n. 75

(4th ed. 2015). 
 

 

 

14 DAVILA v. DAVIS 

Opinion of the Court 

suggests would thus produce a domino effect: Prisoners

could assert their postconviction counsel’s inadequacy as

cause to excuse the default of their appellate ineffectiveness claims, and use those newly reviewable appellate

ineffectiveness claims as cause to excuse the default of 

their underlying claims of trial error. Petitioner’s rule 

thus could ultimately knock down the procedural barriers 

to federal habeas review of nearly any defaulted claim of 

trial error. The scope of that review would exceed anything the Martinez Court envisioned when it established 

its narrow exception to Coleman. 

Petitioner insists that these concerns are overstated 

because many of the newly raised claims will be meritless.

See Brief for Petitioner 28. But even if that were true, 

courts would still have to undertake the task of separating 

the wheat from the chaff. And we are not reassured by

petitioner’s suggestion that extending Martinez would 

increase only the number of claims in each petition rather

than the number of federal habeas petitions themselves.

Reply Brief 14. Each additional claim would require the 

district court to review the prisoner’s trial record, appellate briefing, and state postconviction record to determine 

the claim’s viability. This effort could be repeated at each

level of federal review. We cannot “assume that these 

costs would be negligible,” Murray, 477 U. S., at 487, and 

we are loath to further “burden . . . scarce federal judicial 

resources” in this way, McCleskey, 499 U. S., at 491. 

2 

 Expanding Martinez would not only impose significant 

costs on the federal courts, but would also aggravate the 

harm to federalism that federal habeas review necessarily 

causes. Federal habeas review of state convictions “entails 

significant costs,” Engle v. Isaac, 456 U. S. 107, 126 

(1982), “‘and intrudes on state sovereignty to a degree 

matched by few exercises of federal judicial authority,’ ” 
 

Cite as: 582 U. S. ____ (2017) 15 

Opinion of the Court 

Harrington v. Richter, 562 U. S. 86, 103 (2011) (quoting 

Harris v. Reed, 489 U. S. 255, 282 (1989) (KENNEDY, J., 

dissenting)). It “frustrates both the States’ sovereign 

power to punish offenders and their good-faith attempts to

honor constitutional rights.” Calderon v. Thompson, 523 

U. S. 538, 555–556 (1998) (internal quotation marks omitted). It “degrades the prominence of the [State] trial,” 

Engle, supra, at 127, and it “disturbs the State’s significant interest in repose for concluded litigation [and] denies 

society the right to punish some admitted offenders,” 

Harrington, supra, at 103 (internal quotation marks

omitted).

Apart from increasing the sheer frequency of federal

intrusion into state criminal affairs, petitioner’s proposed 

rule would also undermine the doctrine of procedural

default and the values it serves. That doctrine, like the 

federal habeas statute generally, is designed to ameliorate

the injuries to state sovereignty that federal habeas review necessarily inflicts by giving state courts the first

opportunity to address challenges to convictions in state 

court, thereby “promoting comity, finality, and federalism.” Cullen v. Pinholster, 563 U. S. 170, 185 (2011); 

McCleskey, supra, at 493. Expanding the narrow exception announced in Martinez would unduly aggravate the 

“special costs on our federal system” that federal habeas

review already imposes. Engle, supra, at 128. 

3 

Not only would these burdens on the federal courts and

our federal system be severe, but the benefit would—as a 

systemic matter—be small. To be sure, permitting a state

prisoner to bring a meritorious constitutional claim that

could not otherwise be heard is beneficial to that prisoner.

Petitioner’s counsel concedes, however, that relief is 

granted in, “[i]f any, a very minute number” of “postconviction ineffective assistance of appellate counsel 
 

 

16 DAVILA v. DAVIS 

Opinion of the Court 

cases.” Tr. of Oral Arg. 14. Indeed, he concedes that the 

number of meritorious cases is “infinitesimally small.” 

Ibid. We think it is likely that the claims heard in federal

court because of petitioner’s proposed rule would also be

largely meritless, given that the proposed rule would 

generally affect only those cases in which the trial court

already adjudicated, and rejected, the prisoner’s argument 

regarding the alleged underlying trial error. See supra, at 

11. Given that petitioner’s proposed rule would likely 

generate high systemic costs and low systemic benefits, 

and that the unique concerns of Martinez are not implicated

in cases like his, we do not think equity requires an 

expansion of Martinez. 

* * * 

For the foregoing reasons, we affirm the judgment of the

Court of Appeals. 

It is so ordered. 
_________________ 

_________________ 

 

Cite as: 582 U. S. ____ (2017) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 16–6219 

ERICK DANIEL DAVILA, PETITIONER v. LORIE DAVIS, 

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
 

JUSTICE, CORRECTIONAL INSTITUTIONS 

DIVISION
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT
 

[June 26, 2017] 

JUSTICE BREYER, with whom JUSTICE GINSBURG, 

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting. 

As the Court explains, normally a federal habeas court 

cannot hear a state prisoner’s claim that his trial lawyer

was, constitutionally speaking, “ineffective” if the prisoner 

failed to assert that claim in state court at the appropriate

time, that is, if he procedurally defaulted the claim. See 

ante, at 1 (the prisoner’s failure to raise his federal claim

at the initial-review state collateral proceeding amounts to

an “adequate and independent state procedural ground” 

for denying habeas relief). 

But there are equitable exceptions. In Martinez v. 

Ryan, 566 U. S. 1 (2012), and later in Trevino v. Thaler, 

569 U. S. 413 (2013), we held that, despite the presence of 

a procedural default, a federal court can nonetheless hear 

a prisoner’s claim that his trial counsel was ineffective, 

where (1) the framework of state procedural law “makes it 

highly unlikely in a typical case that a defendant will have

a meaningful opportunity to raise a claim of ineffective

assistance of trial counsel on direct appeal,” id., at 429; (2) 

in the state “‘initial-review collateral proceeding, there 

was no counsel or counsel in that proceeding was ineffective,’” ibid. (quoting Martinez, 566 U. S., at 17); and (3) 
 

 

2 DAVILA v. DAVIS 

BREYER, J., dissenting 

“the underlying ineffective-assistance-of-trial-counsel 

claim is a substantial one, which is to say that the prisoner

must demonstrate that the claim has some merit,” id., 

at 14. 

In my view, this same exception (with the same qualifications) should apply when a prisoner raises a constitutional claim of ineffective assistance of appellate counsel.

See, e.g., Evitts v. Lucey, 469 U. S. 387, 396 (1985) (Constitution guarantees a defendant an effective appellate counsel, just as it guarantees a defendant an effective trial 

counsel). 

I 

Two simple examples help make clear why I believe 

Martinez and Trevino should govern the outcome of this 

case. 

Example One: Ineffective assistance of trial counsel. The 

prisoner claims that his trial lawyer was ineffective, say,

because counsel failed to object to an obviously unfair jury

selection, failed to point out that the prosecution had

promised numerous benefits to its main witness in return

for the witness’ testimony, or failed to object to an erroneous jury instruction that made conviction and imposition 

of the death penalty far more likely. Next suppose the

prisoner appeals but, per state law, may not bring his 

ineffective-assistance claim until collateral review in state 

court (i.e., state habeas corpus), where the prisoner will 

have a better opportunity to develop his claim and the 

attorney will be better able to explain his (perhaps strategic) reasons for his actions at trial. Suppose that, on

collateral review, the prisoner fails to bring up his ineffective-assistance claim, perhaps because he is no longer 

represented by counsel or because his counsel there is

ineffective. Under these circumstances, if his ineffectiveassistance claim is a “substantial” one, i.e., it has “some 

merit,” then Martinez and Trevino hold that a federal 
Cite as: 582 U. S. ____ (2017) 3 

BREYER, J., dissenting 

court can hear the claim even though the state habeas 

court did not consider it. See Trevino, supra, at 429; Martinez, supra, at 14. The fact that the prisoner had no 

lawyer in the initial state habeas proceeding (or his lawyer 

in that proceeding was ineffective) constitutes grounds for 

excusing the procedural default. 

Example Two: Ineffective assistance of appellate counsel. 

Now suppose that a prisoner claims that the trial court 

made an important error of law, say, improperly instructing the jury, or that the prosecution engaged in misconduct. He believes his lawyer on direct appeal should have 

raised those errors because they led to his conviction or (as

here) a death sentence. The appellate lawyer’s failure to

do so, the prisoner might claim, amounts to ineffective 

assistance of appellate counsel. The prisoner cannot make 

this argument on direct appeal, for the direct appeal is the

very proceeding in which he is represented by the lawyer 

he says was ineffective. Next suppose the prisoner fails to

raise his appellate lawyer’s ineffectiveness at the initial

state habeas proceeding, either because he was not represented by counsel in that proceeding or because his counsel there also was ineffective. When he brings his case to

the federal habeas court, the State contends that the 

prisoner’s failure to present his claim during the initial 

state habeas proceeding constitutes a procedural default

that precludes federal review of his claim. 

Given Martinez and Trevino, the prisoner in the first 

example who complains about his trial counsel can overcome the procedural default but, in the Court’s view today,

the prisoner in the second example who complains about

his appellate counsel cannot. Why should the law treat 

the second prisoner differently? Why should the Court not 

apply the rules of Martinez and Trevino to claims of ineffective assistance of both trial and appellate counsel? 
 

 

4 DAVILA v. DAVIS 

BREYER, J., dissenting 

II
 

As I have said, the Constitution applies similarly to both

prisoners: It guarantees them effective assistance of counsel at both trial and during an initial appeal. See Strickland v. Washington, 466 U. S. 668, 686 (1984) (trial); 

Evitts, supra, at 396 (appeal). Moreover, the reasoning of 

Martinez and Trevino applies similarly to both situations. 

Four features of the claim of ineffective assistance of 

trial counsel led the Martinez Court to its conclusion. 

Each equally applies here. First, the Court stressed the 

importance of the underlying constitutional right to effective assistance of trial counsel, describing it as “a bedrock 

principle in our justice system.” 566 U. S., at 12. Our 

cases make clear that the constitutional right to effective

assistance of appellate counsel is also critically important.

The Court wrote in Douglas v. California, 372 U. S. 353, 

357 (1963), that “where the merits of the one and only 

appeal . . . as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn 

between rich and poor.” The Court held in Evitts that “[a]

first appeal as of right . . . is not adjudicated in accord

with due process of law if the appellant does not have the

effective assistance of an attorney.” 469 U. S., at 396. The 

Court added that “the promise of Gideon [v. Wainwright, 

372 U. S. 335 (1963),] that a criminal defendant has a

right to counsel at trial . . . would be a futile gesture unless it comprehended the right to the effective assistance 

of counsel” “on appeal.” Id., at 397. And we stated in 

Martinez itself that “if the attorney appointed by the State

to pursue the direct appeal is ineffective, the prisoner has 

been denied fair process.” 566 U. S., at 11 (citing Coleman 

v. Thompson, 501 U. S. 722, 754 (1991); Evitts, supra, at 

396; Douglas, supra, at 357–358). The fact that, according 

to Department of Justice statistics, nearly a third of convictions or sentences in capital cases are overturned at

some stage of review suggests the practical importance of 
Cite as: 582 U. S. ____ (2017) 5 

BREYER, J., dissenting 

the appeal right, particularly in a capital case such as this 

one. See Dept. of Justice, Bureau of Justice Statistics,

Capital Punishment, 2013–Statistical Tables, p. 19, (rev.

Dec. 2014) (Table 16); see also Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 

10. 

Second, we pointed out in Martinez that the “initial” 

state collateral review proceeding “is the first designated

proceeding for a prisoner to raise a claim of ineffective

assistance at trial.” 566 U. S., at 11. We added that it “is 

in many ways the equivalent of a prisoner’s direct appeal 

as to the ineffective-assistance claim.” Ibid. In Trevino, 

we applied Martinez despite the theoretical possibility 

that a prisoner might raise an ineffective-assistance-oftrial-counsel claim on direct appeal. We wrote that the 

State’s procedural system denied prisoners a “meaningful 

opportunity” to bring ineffective-assistance claims on 

appeal; in effect, it required them to raise the claim for the 

first time in state collateral review proceedings. 569 U. S., 

at 429. 

This consideration applies a fortiori where the constitutional claim at issue is ineffective assistance of appellate

counsel. The prisoner cannot raise that kind of claim in

the very appeal in which he claims his counsel was ineffective. See Ha Van Nguyen v. Curry, 736 F. 3d 1287, 1294– 

1295 (CA9 2013). It makes no difference that the nature 

of the claim, rather than the State’s express rule, makes

that so. See Trevino, supra, at 429 (extending Martinez 

where the “state procedural framework, by reason of its 

design and operation, makes it highly unlikely in a typical

case that a defendant will have a meaningful opportunity 

to raise” the claim on direct appeal); Trevino, supra, at 424 

(referring to “the inherent nature of most ineffective assistance of trial counsel claims ” (emphasis added; internal 

quotation marks omitted)); see also Martinez, 566 U. S., at 

19–20, n. 1 (Scalia, J., dissenting) (There is no “relevant 
 

 

6 DAVILA v. DAVIS 

BREYER, J., dissenting 

difference between cases in which the State says that 

certain claims can only be brought on collateral review 

and cases in which those claims by their nature can only 

be brought on collateral review”).

Third, Martinez pointed out that, unless “counsel’s

errors in an initial-review collateral proceeding . . . establish cause to excuse the procedural default in a federal

habeas proceeding, no court will review the prisoner’s 

claims.” Id., at 10–11 (majority opinion). The same is true 

when the prisoner claims ineffective assistance of appellate counsel. 

The Court argues to the contrary. It says that at least

one court—namely, the trial court—will have considered

the underlying legal error. Ante, at 11. (If not, perhaps 

trial counsel was ineffective.) But I believe the Court here 

misses the point. The prisoner’s complaint is about the 

ineffectiveness of his appellate counsel. That ineffectiveness could consist, for example, in counsel’s failure to

appeal 10 different erroneous decisions of the trial court.

The fact that the trial court made those decisions (assuming they are erroneous) does not help the prisoner. To the 

contrary, it forms the basis of his ineffectiveness claim. In 

the absence of a Martinez-like rule, the prisoner here (and 

prisoners in similar cases) would receive no review of their

ineffective-assistance claims. Moreover, there will be 

cases in which no court will consider the underlying trial 

error, either. Suppose that, during the pendency of the

appeal, appellate counsel learns of a Brady violation, juror

misconduct, judicial bias, or some similar violation whose 

basis was not known during the trial. See Brady v. Maryland, 373 U. S. 83 (1963). And suppose appellate counsel 

fails to pursue the claim in the manner prescribed by state 

law. Without the exception petitioner here seeks, no court

will hear either the appellate-ineffective-assistance claim 

or the underlying Brady, misconduct, or bias claim. 

 Fourth, the Martinez Court believed that its decision 
Cite as: 582 U. S. ____ (2017) 7 

BREYER, J., dissenting 

would “not . . . put a significant strain on state resources.” 

566 U. S., at 15. That is because Martinez imposed limiting conditions: It excuses only those defaults that (1) occur 

at the initial-review collateral proceeding; (2) where prisoner had no counsel, or ineffective counsel, in that proceeding; and (3) where the underlying claim of ineffective 

assistance is “substantial,” i.e., has “some merit.” Id., at 

14–16. Moreover, as the Court pointed out, because many 

States provide prisoners with counsel in initial-review 

collateral proceedings (or at least when the prisoner seems 

to have a meritorious claim), it is unlikely that prisoners

will default substantial ineffective-assistance claims. See 

id., at 14–15 (providing examples). Finally, there is no 

evidence before us that Martinez has produced a greaterthan-expected increase in courts’ workload, even though 

Martinez applies, as Texas concedes, “in most States.” Tr. 

of Oral Arg. 38. 

It therefore seems unlikely that applying Martinez to 

ineffective-assistance-of-appellate-counsel claims will “put 

a significant strain on” state or federal resources. As I 

have said, the same limitations as the Court placed upon

the assertion of a Martinez claim would apply here. And 

the Court’s fear of triggering federal second-guessing of 

many, if not all, trial errors is of no greater concern here 

than it was in Martinez, for both trial- and appellate-level

ineffectiveness claims “could serve as the gateway to 

federal review of a host of trial errors.” Ante, at 13. Given 

a natural judicial hesitation to second-guess counsels’ 

decisions, it is not surprising that we have no significant 

evidence of defaulted claims of ineffective assistance with 

“some merit” flooding the federal courts, either in respect 

to trial counsel (as in Martinez) or in respect to appellate 

counsel (as here). See Strickland, 466 U. S., at 690–691 

(To prevail on an ineffective-assistance claim, the defendant must show that his attorney’s actions “were outside

the wide range of professionally competent assistance,” 
 

 

8 DAVILA v. DAVIS 

BREYER, J., dissenting 

rather than strategic decisions to which the court 

must defer, and that those actions had an “effect on the 

judgment”).

In fact, Texas has supplied some empirical evidence, but

that evidence suggests that courts can manage a Martinez 

exception expanded to include claims of ineffective assistance of appellate counsel. Texas says that in the Ninth

Circuit, which has applied Martinez to ineffectiveassistance-of-appellate-counsel claims since late 2013,

petitioners have used the expanded version of Martinez “in 

dozens” of federal habeas cases. Brief for Respondent 37.

(Texas specifically refers to 10 cases, in only 1 of which the 

petitioner prevailed. Ibid., n. 13.) During that period,

state prisoners filed at least 7,500 federal habeas petitions 

in the Ninth Circuit. See Ninth Circuit Ann. Rep. 71

(2015) (2,468 cases referred to magistrate judges in 2014; 

2,693 in 2015). Hence, Texas’ estimate of added workload 

comes down to an increase of “dozens” of cases out of 7,500 

cases in total. That figure represents an increase, but not

an increase significant enough to warrant depriving a 

prisoner of any forum to adjudicate a substantial claim

that he was deprived of his constitutional right to effective

assistance of appellate counsel. 

III 

In my view, the Court’s effort to distinguish Martinez 

comes down to the following points: (1) Martinez concerned 

only claims of ineffective trial counsel; (2) Martinez involved trial errors that, at least sometimes, would have 

escaped review, while here at least one court (the trial 

court) may have reviewed the underlying legal error; (3) 

Martinez involved cases in which the State itself prevented its appellate courts from reviewing the claim of trial 

counsel’s ineffectiveness, whereas here it is the nature of 

the ineffectiveness claim that prevents the appellate 

courts from reviewing it; and (4) extending Martinez could 
Cite as: 582 U. S. ____ (2017) 9 

BREYER, J., dissenting 

flood the federal system with normally meritless claims. 

I have explained why I believe the last mentioned empirical prediction does not distinguish Martinez and why, 

in any event, it is unlikely to prove correct. See supra, at 

7–8. And I have explained why the second and third 

points do not successfully distinguish Martinez. The 

second fails to focus on the relevant claim: ineffective 

assistance of counsel. See supra, at 6. And it fails to 

acknowledge that there may be cases in which the trial

court will not have considered the legal error underlying

the ineffective-assistance claim. Ibid. The third has little 

to do with the matter. It overlooks the fact that there is 

no “relevant difference” between cases in which the State 

requires that certain claims be brought only on collateral

review and “cases in which those claims by their nature

can only be brought on collateral review,” such as claims of 

ineffective assistance of appellate counsel. See supra, at 

5–6 (quoting Martinez, 566 U. S., at 19–20, n. 1 (Scalia, J., 

dissenting)). In both cases, the State’s scheme deprives a 

prisoner from having his substantial constitutional claim

heard, through no fault of his own.

As to the first point, the Court is of course right. Martinez had to do only with the ineffectiveness of trial counsel. But our cases make clear that due process requires a

criminal defendant to have effective assistance of appellate counsel as well. See supra, at 4. Indeed, effective 

trial counsel and appellate counsel are inextricably connected elements of a fair trial. 

The basic legal principle that should determine the

outcome of this case is the principle that requires courts to 

treat like cases alike. To put the matter more familiarly, 

what is sauce for the goose is sauce for the gander. The 

dissent in Martinez wrote that there “is not a dime’s worth 

of difference in principle between [ineffective-assistanceof-trial-counsel] cases and many other cases in which

initial state habeas will be the first opportunity for a 
 

10 DAVILA v. DAVIS 

BREYER, J., dissenting 

particular claim to be raised,” including “claims asserting

ineffective assistance of appellate counsel.” 566 U. S., at 

19 (opinion of Scalia, J.). I agree.

With respect, I dissent.