Following the Supreme Court’s reversal of the Ninth Circuit’s grant of relief to David Detrich on a claim of ineffective assistance of counsel at sentencing and remand for the Ninth Circuit to consider the impact of Cullen v. Pinholster, the Ninth Circuit sitting en banc has remanded the habeas case back to the district court for a determination of whether, pursuant to Martinez v. Ryan, ineffective assistance by state post-conviction counsel provides cause to overcome Detrich’s procedural default of other ineffective assistance of counsel claims. Detrich v. Ryan, ___ F.3d ___, 2013 WL 4712729 (9th Cir. Sept. 3, 2013) (en banc).
After the Supreme Court’s remand, a three-judge panel issued a decision concluding that Detrich was still entitled to habeas relief on the ineffective assistance of counsel at sentencing claim. Detrich then filed a motion for a remand to the district court in order for a determination of whether ineffective assistance by his post-conviction counsel could excuse the default of other ineffective assistance of trial counsel claims. The panel decision was vacated when rehearing en banc was granted.
In granting the remand motion, a plurality of the en banc court (Fletcher, with Pregerson, Reinhardt and Christen) explained what it found to be the four requirements to overcome a procedural default under Martinez. First, a prisoner is required to show a "substantial" underlying claim of ineffective assistance by trial counsel. According to the plurality, this "may be seen as the Martinez equivalent of the ‘prejudice’ requirement under the ordinary ‘cause’ and ‘prejudice’ rule from Wainwright [v. Sykes, 433 U.S. 72 (1977)]." The definition of substantiality is the standard for issuance of a certificate of appealability. Put another way, a claim is "insubstantial" if it has no merit or is wholly without factual support. The second requirement is that either there was no post-conviction counsel at all or the post-conviction counsel who did represent the prisoner was ineffective. In the plurality’s view, this ineffectiveness showing does not include a prejudice component. Rather, it is limited to establishing that post-conviction counsel performed in a deficient manner. The third requirement is that the state collateral review proceeding was the initial review proceeding for the ineffective assistance of trial counsel claim. Finally, the fourth requirement is that the ineffective assistance of trial counsel claim could not have been raised earlier under state law.
The plurality then recognized the potential need for discovery and an evidentiary hearing where Martinez is argued to excuse a defaulted claim. It also found that the mere fact that some claims of ineffective assistance of trial counsel had been raised in post-conviction proceedings did not prevent the application of Martinez to additional ineffective assistance claims that were procedurally defaulted because they had not been properly raised. The plurality concluded by explaining why it disagreed with the dissent’s opinion that the defaulted claims were so lacking in merit as to justify denial of the remand motion. In so doing, the plurality did not itself decide whether the defaulted claims were "substantial," instead leaving that determination to the district court. The non-defaulted sentencing ineffectiveness claim was not reached as it could not be properly evaluated without knowing whether cause excused the default of additional claims that could impact the prejudice analysis.
Nguyen concurred in the result but wrote separately to opine that the usual Strickland prejudice test applies where the cause to overcome a defaulted trial ineffectiveness claim is post-conviction counsel’s own ineffectiveness. Watford concurred in the judgment. Graber, joined by Kozinski, Gould, Bea and Murguia, dissented. Graber would deny the motion for a remand and decide the non-defaulted sentencing ineffectiveness claim that was reversed and remanded for further consideration by the Supreme Court.