The Fourth Circuit (Traxler with Duncan; partial dissent by Davis) in a North Carolina death penalty case denied federal habeas counsel’s motion to be designated as “Martinez counsel” and to have the appeal deferred and the case remanded to the district court for further investigation and possible amendment of the habeas petition with substantial claims of ineffective assistance by trial counsel that state post-conviction counsel were ineffective in failing to raise. Fowler v. Joyner, ___ F.3d ___, 2014 WL 2445786 (4th Cir. June 2, 2014). Looking to North Carolina law, the panel found that Martinez v. Ryan, 132 S.Ct. 1309 (2012) would apply to claims of ineffective assistance of trial counsel that were not apparent from the trial record and so could not have been presented on direct appeal. Nevertheless, the panel majority concluded that Fowler could not benefit from Fourth Circuit precedent holding that new counsel was required for purposes of investigating Martinez claims where federal habeas counsel also represented the petitioner in state post-conviction proceedings. Here, “Fowler had the benefit of qualified, independent counsel during the pendency of his federal habeas petition below who had ample opportunity to pursue any Martinez-based arguments on his behalf.” This was because one of the two attorneys who had represented Fowler both in state post-conviction proceedings and at the start of federal habeas proceedings had been allowed to withdraw from the federal proceedings and was replaced by a new attorney who had not previously represented Fowler. Although the petition, a response, and a reply had already been filed at the time replacement counsel was appointed, the new attorney was granted a sixty day abeyance of any ruling on the federal petition without prejudice to requesting additional time. Martinez was fully briefed and pending argument in the Supreme Court at this time. Ultimately, the district court denied Fowler’s habeas petition a little over a year after Martinez was decided by the Supreme Court. “However, at no time during the pendency of her representation [in the district court] did [new counsel] seek to amend the federal habeas petition to assert additional ineffective-assistance-of-trial-counsel claims, or request a further abeyance of the case to allow for any additional investigation of any potential new claims.” The panel majority was unpersuaded by Fowler’s argument that the designation of “Martinez counsel” and a remand was warranted because the Fourth Circuit’s decision in Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013) was not issued until after Fowler’s appeal was pending. It observed that “[t]he decisions in both Juniper and Gray [v. Pearson, 526 Fed. Appx. 331 (4th Cir. 2013)] addressed a conflict-of-interest argument that was timely made before the district court immediately after the Martinez decision was handed down by the Supreme Court, and were based upon its reasoning and holding.” The panel majority concluded:
In sum, Martinez provided Fowler’s counsel with all the authority necessary to request an additional abeyance of the district court’s ruling and, if appropriate, to file an amended habeas petition. No explanation for this delay has been offered. Unlike the petitioners in Juniper and Gray, Fowler did not seek appointment of independent, qualified counsel under Martinez in the district court. [Newly appointed federal habeas counsel] already met that criteria. Nor did Fowler or [new counsel], upon her appointment, seek additional time to investigate whether there were any additional ineffective-assistance-of-trial-counsel claims which Martinez might allow the district court to consider, leaving us with the unmistakable impression that there was nothing of substance left to investigate. Counsel may or may not have investigated whether Fowler’s two sets of qualified, state postconviction counsel were constitutionally ineffective in failing to identify and present an ineffective-assistance-of-trial-counsel claim. But even if such Martinez-based claims existed, they have been waived by Fowler’s to raise the issue below, and any ineffectiveness on [new habeas counsel’s] part provides Fowler with no relief here.
Judge Davis would remand to allow the district court to consider the motion to appoint counsel.