9th Circuit finds alleged IAC of state post-conviction provides good cause for abeyance in Nevada death penalty case
Posted on: 3/20/2014 04:46:29 PM by Peoples
In Blake v. Baker (9th Cir. March 14, 2014), the Ninth Circuit (Tashima, with Fletcher and Nguyen) reversed the district court’s dismissal of Blake’s habeas petition and remanded with instructions to grant abeyance while Blake exhausts a new claim of ineffective assistance (IAC) by trial counsel.   (The district court found that Blake did not have good cause for a stay under Rhines v. Weber, 544 U.S. 269 (2005) and ordered Blake to withdraw his unexhausted claims or face dismissal of the entire petition.  Blake elected dismissal.)  The court of appeals found that Blake established the requisite good cause for abeyance by explaining with specificity that the claim was unexhausted because state post-conviction counsel had failed to conduct any independent investigation or retain experts in order to discover the facts that would have supported the IAC claim.  Blake also set out the evidence that had not been uncovered which concerned Blake’s abusive upbringing and his  mental illnesses, including mental health evaluations and declarations from friends and family.  In addition, Blake provided a declaration from the post-conviction investigator to support the allegation that post-conviction counsel had performed deficiently.  On this record, it was an abuse of discretion to find  that Blake had not established good cause for failing to exhaust the IAC claim before coming to federal court.  The appeals court found support for its holding that IAC by post-conviction counsel can provide good cause for abeyance in Martinez v. Ryan, 132 S.Ct. 1309 (2012).  The appeals court concluded: “We believe that good cause under Rhines, when based on IAC, cannot be any more demanding than a showing of cause under Martinez to excuse state procedural default.”  In a footnote, the appeals court observed that because Blake met the showing for cause under Martinez, it was not deciding whether some lesser showing will suffice to show good cause under Rhines.  It noted, however, language in Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) suggesting that the abeyance cause standard is less demanding than that of Martinez.