9th Circuit remands defaulted trial IAC claim for consideration of Martinez v. Ryan
Posted on: 3/14/2014 05:00:17 PM by Peoples
In Clabourne v. Ryan, ___ F.3d ___, 2014 WL 866382 (9th Cir. March 5, 2014), the panel (Clifton, with Berzon and Ikuta) affirmed the denial of a claim that the Arizona Supreme Court improperly applied a causal nexus test to Clabourne’s mental health evidence.  The panel then certified for appeal two claims of ineffective assistance by resentencing counsel that had been found by the district court to be procedurally defaulted in a pre-Martinez decision.  (One involved the failure to seek suppression of a confession.  The other concerned the failure to seek additional mental health evaluations.)  The panel then analyzed the fragmented decision in Detrich v. Ryan, ___ F.3d ___, 2013 WL 4712729 (9th Cir. Sept. 3, 2013) (en banc) to discern what parts received support from a majority of the en banc court.  Those parts would then be applied to the Martinez analysis.  The panel first found that “where it is necessary to consider whether a procedural default should be excused under Martinez in a case where the district court’s holding that there had been a procedural default preceded Martinez, and the result is uncertain, we should remand the matter to the district court to let it . . . conduct such a review in the first instance . . ..”  Second, to demonstrate “cause” – the first part of the showing of “cause and prejudice” required to excuse a procedural default – “the petitioner must show that his post-conviction relief counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984).”  This means establishing both deficient performance by post-conviction counsel and prejudice.  Such Strickland prejudice requires the petitioner to establish that there was a reasonable probability that, absent the deficient performance by post-conviction counsel, the result of the post-conviction proceedings would have been different.   The panel explained: “Determining whether the result of the post-conviction proceedings would have been different will require consideration of the underlying claim of ineffective assistance by resentencing counsel and the questions of (a) whether resentencing counsel performed deficiently, and (b) whether there was a reasonable probability that, absent deficient performance at resentencing, the result of the resentencing proceedings would have been different.”   Third, “prejudice” for purposes of the “cause and prejudice” analysis in the Martinez context “requires only a showing that the trial-level ineffective assistance of counsel claim was ‘substantial.’” The panel later noted that if the “cause” prong of the test is satisfied, necessarily the defaulted claim will have been “substantial.”

The panel next applied this Martinez analysis to the claim of IAC for failing to move to suppress Clabourne’s confession at the resentencing proceeding.  Although existing law did not support suppression at the time of Clabourne’s trial, there was favorable law in existence at the time of Clabourne’s resentencing.  The question of deficient performance by post-conviction counsel had been conceded by the State.  Turning to prejudice, this involved an examination of the merits of the claim.  Clabourne contended that resentencing counsel should have moved to suppress his confession and that there was a reasonable probability that the result of the resentencing would have been more favorable without consideration of the confession in that it supported an aggravating circumstance.   Because the panel was not sure whether there was a reasonable probability that the exclusion of Clabourne’s statement would have made a difference at resentencing, it was unsure whether the resentencing IAC claim was substantial.  It therefore remanded to the district court for it to consider in the first instance whether the previous default of Clabourne’s confession-based claim can be excused under Martinez

The panel concluded by affirming the denial of the IAC claim based on the failure of resentencing counsel to seek additional mental health evaluations.  The panel found that the post-conviction court’s alternative merits rejection of the claim was not contrary to or an unreasonable application of federal law.