Pinholster's Hostility to Victims of Ineffective State Habeas Counsel

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan's recognition of the importance of counsel in initial-review collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state habeas counsel. It concludes that the course of action most consistent with the principles of the Antiterrorism and Effective Death Penalty Act of 1996 and petitioners' rights is to stay cases to give state courts the opportunity to further develop the record. This procedure allows petitioners to fully utilize the adversarial system and allows state courts the opportunity to correct any procedural errors. Should the state fail to allow for further record development, petitioners have a strong argument that the state procedures are systemically inadequate-a much-needed deterrent against hostility to federal claims.INTRODUCTIONElrick Gallow spent nearly thirteen years attempting to vindicate his constitutional right to effective counsel.1 On the second day of Gallow's 1999 trial, his attorney Ahmad Muhammad requested a recess just before the victim took the stand.2 Unbeknown to Gallow, Muhammad suffered from depression, anxiety disorder, and Post-Traumatic Stress Disorder; he withheld impeachment evidence regarding the victim from Gallow because he had a close personal relationship with the victim's mother; he had stopped practicing law entirely; and he only agreed to represent Gallow in order to convince Gallow to plead guilty.3On September 1, 2000, Gallow and his new counsel, Dele Adebamiji, filed a motion to withdraw his guilty plea.4 The motion asserted that his previous attorney had a conflict of interest and that his guilty plea was involuntary.5 There was clear evidence of this conflict of interest. Muhammad gave a sworn statement before the Louisiana State Disciplinary Board that he had been "really hurt by what [Gallow] had done" and felt that Gallow "should have been punished" for his crimes. Muhammad testified, "I became his, 'Judgor' instead of his counsel."6 Muhammad was subsequently disbarred-in part for his performance in this case.7Adebamiji completely failed to develop a record of Muhammad's conflict. He did not submit the disciplinary evidence into the record.8 He failed to subpoena Muhammad for the initial hearing on the matter.9 The court continued the matter for a later hearing so that Muhammad could be brought to court, but neither Muhammad nor Adebamiji appeared for the later hearing.10 Ultimately, the state court dismissed the action with prejudice for failure to present any evidence.11After attempting to correct this problem in the Louisiana state system for years,12 Gallow filed a federal habeas petition under 28 U.S.C. § 2254, hoping to expand the record of his proceedings to include the affidavits from the Louisiana Disciplinary Board.13 Section 2254, a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),14 provides for federal review of state court convictions. A federal court may grant habeas relief when a state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or when it "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."15 The federal district court denied Gallow's petition.16 The Fifth Circuit affirmed, holding that it could not consider the testimony before the disciplinary board because it was not in the state court record. …