Criminal Law & Procedure

Davila v. Davis & McWilliams v. Dunn - Post-Decision SCOTUScast

SCOTUScast 8-21-17 featuring Joseph Tartakovsky
Joseph Tartakovsky August 21, 2017

In June 2017, the Supreme Court decided two cases involving habeas corpus petitions filed by state prisoners challenging the validity of their convictions and/or sentences: Davila v. Davis and McWilliams v. Dunn.

The petition in Davila v. Davis involved a claim of ineffective assistance of counsel. Erick Davila was convicted in a Texas court of capital murder. Although his trial attorney had objected to one of the court’s jury instructions on intent, the court had overruled the objection. On direct appeal his appellate counsel raised various claims, but did not challenge the jury instruction ruling. His conviction and sentence were affirmed by the state’s highest criminal court, and the U.S. Supreme Court denied cert. Davila then initiated a collateral attack on his conviction: he sought habeas relief in state court, but his attorney challenged neither the jury instruction ruling nor the failure of his appellate counsel to raise the alleged instructional error on direct appeal. Texas’ highest criminal court ultimately denied relief and the U.S. Supreme Court again denied cert.  Davila next raised a habeas claim in federal court, alleging that his appellate counsel provided ineffective assistance by failing to challenge the allegedly erroneous jury instruction on direct appeal. Although his failure to have raised that claim in his state habeas petition ordinarily constituted a fatal procedural default, Davila argued for an exception on the grounds that the failure was itself the result of ineffective assistance by his state habeas counsel. The federal district court denied Davila’s petition and the U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability for further review. The Supreme Court granted certiorari, however, to consider whether the ineffective assistance of postconviction counsel provided cause to excuse the procedural default. 

By a vote of 5-4, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion delivered by Justice Thomas, the Court held that the ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of claims of ineffective assistance of appellate counsel. Justice Thomas’ majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan. 

The petition in McWilliams v. Dunn involved the scope of a state’s duty, identified by the Supreme Court in its 1985 decision in Ake v. Oklahoma, to provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense, and independent from the prosecution, to effectively “assist in evaluation, preparation, and presentation of the defense.” In 1986, James McWilliams, Jr. was convicted by an Alabama jury of capital murder. Although a state commission, convened after McWilliams’s counsel requested a psychiatric evaluation, found that he was competent to stand trial and had not been suffering from mental illness at the time of his alleged crime, his counsel had also asked for neurological and neuropsychological testing while the parties awaited sentencing. The examining doctor concluded that McWilliams had some genuine neuropsychological problems, and his attorney also received various updated mental health records just before the sentencing hearing convened. Although the attorney sought a continuance and the assistance of someone with psychological expertise to evaluate this new material, the trial court denied those requests and sentenced McWilliams to death. Alabama’s appellate courts affirmed his conviction and sentence on direct appeal, and his effort to obtain state postconviction relief also failed. On federal habeas review, the district court found that the requirements described in Ake had been satisfied and denied McWilliams relief. The U.S. Court of Appeals for the Eleventh Circuit affirmed, but the Supreme Court granted certiorari to consider whether the Alabama Court of Criminal Appeals’ determination that McWilliams got all the assistance to which Ake entitled him was “contrary to, or involved an unreasonable application of, clearly established Federal law” under the federal habeas statute.

By a vote of 5-4, the Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Breyer, the Court indicated that “Alabama’s provision of mental health assistance fell [] dramatically short of what Ake requires” and therefore concluded that the Alabama court decision affirming McWilliams’s conviction and sentence was “contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Eleventh Circuit had alternatively held that any error by the Alabama courts lacked the “substantial and injurious effect or influence” required to warrant a grant of habeas relief, the Supreme Court indicated that the Eleventh Circuit should reconsider on remand “whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered” to the outcome of McWilliams’s case. Justice Breyer’s majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, in which the Chief Justice and Justices Thomas and Gorsuch joined. 

And now, to discuss the cases, we have Joseph Tartakovsy, Deputy Solicitor General for the State of Nevada. 

Lee v. US: Effectiveness of Counsel - Podcast

Professional Responsibilities & Legal Education Practice Group Podcast
Brian R. Frazelle, Laura Howell July 27, 2017

Jae Lee lived in the United States as a legal permanent resident since 1982. In 2009, he was arrested for possession of ecstasy and intent to distribute. Lee’s counsel advised him to accept a guilty plea because of the compelling case against him, assuring Lee that in doing so he would not face deportation. However, because he plead guilty to an aggravated felony, Lee was set for deportation under the Immigration and Nationality Act.  Lee appealed, claiming he had ineffective counsel under the two-pronged Strickland Standard: whether counsel was ineffective and if the counsel’s actions affected the outcome of the case. Had he known he could be deported, Lee argued, he would have gone to trial.

On June 23, the Supreme Court ruled 6-2 in favor of Lee. Laura Howell and Brian R. Frazelle, both authors of amicus briefs in this case, joined us to discuss the ruling and its implications.


  • Brian R. Frazelle, Appellate Counsel, Constitutional Accountability Center
  • Laura Howell, Assistant Attorney General, Alabama Attorney General's Office


Are Existing Civil Rights Policies Based on a Statistical Understanding That Is the Opposite of Reality? - Podcast

Civil Rights Practice Group Podcast
James P. Scanlan, Roger B. Clegg July 25, 2017

For decades, the DOJ’s civil rights enforcement policies regarding lending, school discipline, and criminal justice have been premised on the belief that relaxing standards and otherwise reducing the frequency of adverse outcomes will reduce percentage racial differences in rates of experiencing those outcomes.  Exactly the opposite is the case. Generally reducing any adverse outcome tends to increase, not decrease, percentage racial differences in rates of experiencing those outcomes. This Teleforum discussed whether the Sessions DOJ will be able to understand the statistical issues and, if so, how such understanding should affect civil rights enforcement policies. Click here to access materials referenced in this Podcast. Click here for Jim's website.


  • James P. Scanlan, Attorney at Law
  • Moderator: Roger B. Clegg, President and General Counsel, Center for Equal Opportunity