On June 7, 2013, the Fourth Circuit (Davis with Wynn and Diaz concurring) issued an unpublished order vacating the district court judgment denying Ricky Gray’s habeas petition and remanding for appointment of independent counsel to review the performance of state post-conviction counsel vis-a-vis the presentation of ineffective assistance of trial counsel claims. Gray v. Pearson, No. 12-5 (4th Cir. June 7, 2013).
Counsel representing Gray in federal habeas proceedings had also represented him in state post-conviction proceedings. Gray argued first to the district court (unsuccessfully) and then to the Fourth Circuit that under the reasoning and holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012), he was entitled to counsel who could vigorously examine and present if available potential allegations of ineffective assistance by current counsel in his state habeas proceedings in raising claims of ineffective assistance by trial counsel. The panel agreed "that this is a correct reading of Martinez." The panel found that under Virginia law, ineffective assistance of trial counsel claims must be presented for the first time in state collateral proceedings. The panel further accepted present counsel’s argument that they suffered from a conflict of interest regarding both investigating claims that they failed to raise in state court and then raising their own ineffectiveness as cause to overcome the procedural bar imposed for not presenting those claims during the initial state post-conviction proceeding. That there was a genuine conflict of interest was supported by advice provided to counsel by the Virginia State Bar Ethics Counsel as well as affidavits from two legal ethics experts. The panel was unpersuaded by the warden’s contention that appointment of independent counsel was unnecessary in light of present counsel’s failure to identify any potentially defaulted claims. The panel explained:
The fact, even if true, that Gray's counsel did not identify any "sufficient[ly] substantial" claim under Martinez does not undercut their request that independent counsel be appointed to explore Gray's Martinez claims. We see no material difference between an ethical prohibition on a lawyer's attempt to investigate or advance her own potential errors, on the one hand, and a like prohibition on her attempts to identify and produce a list of her own errors giving rise to a "substantial claim" on the other hand.
The judgment was vacated and the case was remanded for further proceedings not inconsistent with this order.