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Hofstra Law Review

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This piece, published in Part 1 of Hofstra Law Review’s symposium marking the tenth anniversary of theABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, considers the converging pressures now impelling the states to provide the effective assistance of counsel instate capital post-conviction proceedings. On the one hand, Martinez v. Ryan, 132 S. Ct. 1309 (2012) - a case that will likely be expanded to a number of additional procedural and substantive contexts - warns the states that if they fail to provide such counsel, their capital convictions will be subject to searching federal review. On the other hand, Cullen v. Pinholster, 131 S.Ct. 1388 (2011), offers the states the promise that if they do provide such counsel their capital convictions will be very deferentially treated on federal review. Thus, theforces of federalism may cause the states to adopt a beneficial reform that the Supreme Court has been unwilling to mandate under the Constitution.

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