A Case for a Constitutional Right to Counsel in Habeas Corpus

This Article argues for recognition of a constitutional right to assistance of counsel in habeas corpus proceedings that involve challenges to the legality of a criminal judgment where habeas in effect functions as the first appeal of right. It is well-established that due process and equal protection principles guarantee the indigent defendant a right to counsel on the first appeal of right. But the Supreme Court has concluded that no right to counsel attaches in further, discretionary appeals, and in state habeas proceedings where the claims at issue were previously litigated on direct appeal. In Coleman v. Thompson, decided in 1991, the Court explicitly reserved the question as to whether the same conclusion applies to claims for which habeas corpus provides the first forum for judicial review. Significantly, many of these claims include allegations of ineffective assistance of trial or appellate counsel, and prosecutorial or police misconduct. Despite this provocative reservation, most courts have accepted as a foregone conclusion that no right to counsel exists in any habeas proceeding, regardless of the nature of the claims raised therein. This conclusion is reached with little to no constitutional analysis. Academics, though often acknowledging the issue reserved in Coleman, have devoted relatively little scholarship to it. My Article is the first to tackle the issue directly. Relying on the historical role and jurisprudential underpinnings of the right to counsel and the writ of habeas corpus, I construct a due process and equal protection framework that supports a constitutional right to counsel in all habeas proceedings that provide the first forum for judicial review of the claims at issue.