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Detrich v. Ryan

United States Court of Appeals, Ninth Circuit

September 3, 2013

David Scott DETRICH, Petitioner-Appellant,
v.
Charles L. RYAN, Director of Arizona Department of Corrections, Respondent-Appellee.

Argued and Submitted En Banc Dec. 10, 2012.

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Amy Sara Armstrong, and Jennifer Susan Bedier (argued), Arizona Capital Representation Project, Tucson, AZ, for Petitioner-Appellant.

Kent Ernest Cattani (argued), and Laura Chiasson, Office of the Arizona Attorney General, Tucson, AZ, for Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:03-cv-00229-DCB.

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, SUSAN P. GRABER, WILLIAM A. FLETCHER, RONALD M. GOULD, CARLOS T. BEA, MARY H. MURGUIA, MORGAN CHRISTEN, JACQUELINE H. NGUYEN, and PAUL J. WATFORD, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Judges Pregerson and Reinhardt concur in the entirety of the following opinion. Judge Christen concurs in Part II and in the result. Judges Nguyen and Watford concur in the result.

David Scott Detrich appeals from the district court's denial of his habeas petition. An Arizona judge sentenced Detrich to death after a jury convicted him of murder, kidnapping, and sexual abuse. The district court held that several of Detrich's claims of ineffective assistance of counsel (" IAC" ) by his trial counsel were procedurally defaulted because he had failed to raise them during his state post-conviction relief (" PCR" ) proceedings. Applying then-governing law, the district court rejected Detrich's argument that ineffective assistance of his PCR counsel could excuse his procedural default.

While Detrich's appeal from the district court decision was pending in this court, the Supreme Court decided Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). The Court held in Martinez that a state PCR counsel's ineffective assistance in failing to raise trial-counsel IAC claims can excuse a procedural default. Detrich moved for a remand to the district court to allow that court to rule on his Martinez motion in the first instance.

We grant the motion and remand to the district court.

I. Background

Detrich was charged with first-degree murder, kidnapping, and sexual assault in connection with the killing of Elizabeth Souter.

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State v. Detrich (Detrich I), 178 Ariz.380, 873 P.2d 1302, 1304 (1994). Alan Charlton, who participated in the events that culminated in Souter's murder, pled guilty to kidnapping. He then testified against Detrich in exchange for a ten-and-a-half-year sentence.

Detrich's first trial ended in a mistrial after a prosecution witness testified that Detrich had invoked his rights under the Fifth Amendment during the investigation. Id. The Arizona Supreme Court reversed the conviction in Detrich's second trial because of a defective jury instruction. Id. at 1306.

After a third trial, the jury convicted Detrich of kidnapping and first-degree murder. State v. Detrich (Detrich II), 188 Ariz.57, 932 P.2d 1328, 1331 (1997). The jurors could not agree on a basis to support the first-degree murder conviction. Nine jurors found Detrich guilty of premeditated murder. Three jurors found him guilty of only felony murder. That is, it appears that only nine jurors were convinced that Detrich, rather than Charlton, was the actual killer. The trial judge concluded beyond a reasonable doubt that Detrich was the killer. Based on that conclusion, he sentenced Detrich to death for the murder and to twenty-one years in prison for the kidnapping. Id. The Arizona Supreme Court affirmed Detrich's convictions and sentence. Id.

With the assistance of new counsel, Detrich filed a PCR petition in Pima County Superior Court. Detrich alleged in his PCR petition that counsel at his third trial had been ineffective for failing to (1) present mitigating evidence during sentencing; (2) present an expert witness to rebut the aggravating factors presented by the state; (3) retain an expert witness to examine certain pieces of forensic evidence at trial; (4) present live testimony from exculpatory witness William Shell instead of relying on Shell's recorded testimony from a prior trial; (5) object to testimony that Charlton's plea agreement required that he testify truthfully; and (6) preserve other constitutional challenges for appeal. The superior court rejected Detrich's claims on the merits, holding that " neither prong of the Strickland v. Washington[, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] test has been met as to any claims of ineffective assistance of counsel." The Arizona Supreme Court denied review, leaving the superior court's four-page order as the only reasoned state-court PCR decision.

Detrich then filed a habeas petition in federal district court. The petition alleged some of the claims that had been rejected in the state PCR proceeding, including the trial-counsel IAC claims for failure to present mitigating evidence and failure to present an expert witness to rebut the state's aggravation case. The petition also raised trial-counsel IAC claims that had not been presented in the state PCR proceedings.

Before the district court ruled, Detrich filed a second PCR petition in the superior court. In this petition, Detrich raised many of the trial-counsel IAC claims he had alleged for the first time in his federal petition. The superior court held that these new claims were procedurally barred under Arizona Rule of Criminal Procedure 32.2(b) because they could have been raised in Detrich's first PCR petition.

The district court then ruled that Detrich's new trial-counsel IAC claims were procedurally defaulted for purposes of federal habeas review. The court rejected Detrich's argument that the ineffectiveness of his first PCR counsel excused his procedural default, noting that there was no constitutional right to counsel in PCR proceedings.

The district court rejected all of Detrich's non-defaulted claims on the merits.

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After an evidentiary hearing, the district court held that Detrich's counsel had performed deficiently by failing to investigate and present mitigating evidence at sentencing, contrary to the holding of the state PCR court. Detrich v. Schriro, No. CV-03-229-TUC-DCB, 2007 WL 4024551, at *3-10 (D.Ariz. Nov. 15, 2007). The district court concluded, however, that Detrich had failed to show prejudice resulting from that deficient performance as required under Strickland. Detrich, 2007 WL 4024551, at * 10-24.

A three-judge panel of this court reversed, vacating Detrich's death sentence. Detrich v. Ryan, 619 F.3d 1038 (9th Cir.2010). The panel agreed with the district court that the Arizona PCR court had unreasonably applied Strickland when it concluded that Detrich's sentencing counsel had not performed deficiently. Id. at 1052-57. However, it disagreed with the district court on the prejudice prong of Strickland, holding that the PCR court's conclusion that Detrich was not prejudiced by trial counsel's failure to investigate and present mitigating evidence was based on an unreasonable determination of the facts. Id. at 1057-69.

The Supreme Court vacated our decision and remanded in light of its decision in Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Ryan v. Detrich, __ U.S. __, 131 S.Ct. 2449, 179 L.Ed.2d 1206 (2011) (mem.). On remand, the three-judge panel again reversed the district court and vacated the death sentence. Detrich v. Ryan, 677 F.3d 958 (9th Cir.2012). After the panel issued its second opinion, Detrich moved to remand under Martinez. We granted rehearing en banc. 696 F.3d 1265 (9th Cir.2012). Detrich's Martinez motion is now before our en banc panel.

II. Martinez v. Ryan and Trevino v. Thaler

The district court properly concluded under then-governing law that Detrich's trial-counsel IAC claims raised for the first time in his federal habeas petition had been procedurally defaulted, and that it therefore could not hear them. A federal court sitting in habeas ordinarily cannot hear a petitioner's procedurally defaulted federal claims absent a showing of cause and prejudice, or a showing that failing to review the claim will result in a fundamental " miscarriage of justice." Wainwright v. Sykes, 433 U.S. 72, 88, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (applying the rule in the context of failure to make contemporaneous objection); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (making " explicit" that Wainwright and its progeny apply in " all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule" ). In Coleman, the Court held that ineffective assistance of counsel in a state PCR proceeding cannot constitute cause to excuse a procedural default because there is no constitutional right to an attorney in state PCR proceedings. 501 U.S. at 752-53, 111 S.Ct. 2546. Applying Coleman, the district court correctly held, based on the law as it then stood, that the ineffectiveness of Detrich's state PCR counsel in failing to raise trial-counsel IAC claims could not constitute cause.

While the district court's decision was on appeal, the Supreme Court changed the law. See Martinez, 132 S.Ct. at 1315. The Court held in Martinez that " [i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. The Court addressed the situation in Arizona,

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where a prisoner is forbidden to raise a trial-counsel IAC claim on direct review. Such a claim may be brought only in state PCR proceedings. Id. The Court wrote that in such cases, " the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective-assistance claim." Id. at 1317. The Court recognized that " if counsel's errors in an initial-review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner's claims." Id. at 1316.

The Court therefore held,

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at 1320. The Court did not reach the question of whether there is a constitutional right to effective assistance of counsel during a state PCR proceeding. Id. at 1319-20. Rather, the Court established an equitable rule that IAC during initial-review PCR proceedings may constitute " cause" to excuse a state-court procedural default. Id.

In Trevino v. Thaler, __ U.S. __, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), the Court reaffirmed and slightly expanded the Martinez rule. The question in Trevino was whether the Martinez rule applies in states, such as Texas, where an appellate counsel is legally permitted to assert a claim of trial-counsel IAC on direct review, but where it is " highly unlikely" as a practical matter that appellate counsel will have a " meaningful opportunity" to do so. Id. at 1921. The Court noted that Texas, unlike Arizona, " appears at first glance to permit ... the defendant initially to raise a claim of ineffective assistance of trial counsel on direct appeal." Id. at 1915. But " in actual operation," the " structure and design of the Texas system ... make it ‘ virtually impossible’ for an ineffective assistance claim to be presented on direct review." Id. (quoting Robinson v. State, 16 S.W.3d 808, 810-11 (Tex.Crim.App.2000)). The Court therefore found " no significant difference between this case and Martinez. " Id. at 1921. The Court concluded that " where, as here, [the] state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, our holding in Martinez applies." Id.

This is the first occasion for an en banc panel of our court to deal with what we will call, for ease of reference, a Martinez motion. For the guidance of the district court on remand, we take the opportunity to explicate three aspects of the Court's decisions in Martinez and Trevino.

A. " Cause" under Martinez and Trevino

In Martinez and Trevino, the Court created an exception to the normally applicable " cause" and " prejudice" rule for excusing state-court procedural default on federal habeas. Under the usual rule, " ‘ cause’ ... must be something external to the petitioner, something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753, 111 S.Ct. 2546. State PCR counsel's " ignorance or inadvertence" cannot constitute " cause" under this rule. Id. PCR counsel acts as " the petitioner's agent ..., and the petitioner must ‘ bear the risk of attorney error’ " because there is no constitutional right to counsel in state PCR proceedings.

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Id. at 753-54, 111 S.Ct. 2546 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To show " prejudice" under the usual rule, the " habeas petitioner must show ‘ not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ " Murray, 477 U.S. at 494, 106 S.Ct. 2678 (quoting) United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (omission and emphasis in original).

The strict " cause" and " prejudice" rule, first articulated by the Court in 1977 in Wainwright v. Sykes, replaced the more lenient " deliberate bypass" rule that had been established in Fay v. Noia, 372 U.S. 391, 438-39, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The Court in Wainwright justified the strictness of the new rule as necessary to prevent competent defense counsel from " sandbagging" the prosecution at trial. 433 U.S. at 89, 97 S.Ct. 2497. The Court explained that the rule discouraged " ‘ sandbagging’ on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off." Id. Sandbagging might consist, for example, of competent defense counsel deliberately failing to make a constitutional objection to testimony of a key prosecution witness, with the result that neither the court nor the prosecutor takes corrective action during the trial. Then, in the event that the defendant is convicted, defense counsel could raise for the first time on federal habeas the constitutional objection he deliberately failed to make during trial, with the result that the conviction would be set aside.

The concern that gave rise to the strict " cause" and " prejudice" rule is not at issue in a Martinez motion. There is no concern about competent defense counsel who might " sandbag" at trial. The premise of Martinez is incompetent counsel. Indeed, the premise is two incompetent counsel— trial counsel and state PCR counsel. This quite different circumstance is reflected in the Court's more lenient rule in Martinez for excusing procedural default. The Court justified the rule by emphasizing the importance of the right to effective assistance of trial counsel, which the Court called " a bedrock principle in our justice system." Martinez, 132 S.Ct. at 1317. " [T]he limited nature of the qualification to Coleman adopted here reflects the importance of the right to the effective assistance of trial counsel and Arizona's decision to bar defendants from raising ineffective-assistance claims on direct appeal." Id. at 1320.

Under the new Martinez rule, a procedural default by state PCR counsel in failing to raise trial-counsel IAC is excused if there is " cause" for the default. The Court wrote in Trevino, summarizing its holding in Martinez:

We consequently read Coleman as containing an exception, allowing a federal habeas court to find " cause," thereby excusing a defendant's procedural default, where (1) the claim of " ineffective assistance of trial counsel" was a " substantial" claim; (2) the " cause" consisted of there being " no counsel" or only " ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the " initial" review proceeding in respect to the " ineffective-assistance-of-trial-counsel claim" ; and (4) state law requires that an " ineffective assistance of trial counsel [claim] ... be raised in an initial-review

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collateral proceeding." Martinez, [132 S.Ct. at 1318-19, 1320-21].

Trevino, 133 S.Ct. at 1918. The Court thus clarified that these are the only four requirements to overcome a procedural default under Martinez.

Of the four requirements for " cause," we need not pause over the third or fourth. The third is self explanatory. The fourth was modified in Trevino, as explained above. The first and second requirements, however, merit attention.

The first requirement, that the prisoner show a " substantial" underlying trial-counsel IAC claim, may be seen as the Martinez equivalent of the " prejudice" requirement under the ordinary " cause" and " prejudice" rule from Wainwright. The second requirement, that there have been " ‘ no counsel’ or only ‘ ineffective’ counsel," may be seen as the Martinez equivalent of the " cause" requirement of the rule from Wainwright.

With respect to the first requirement, that there be a " substantial" claim, the Court wrote that a prisoner must

demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U.S. 322 [123 S.Ct. 1029, 154 L.Ed.2d 931] (2003) (describing standards for certificates of appealability to issue).

Martinez, 132 S.Ct. at 1318-19. Under the standard for issuing a certificate of appealability, which the Court incorporated in its definition of substantiality, " a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and alterations omitted). Stated otherwise, a claim is " insubstantial" if " it does not have any merit or ... is wholly without factual support." Martinez, 132 S.Ct. at 1319.

The second requirement, that there have been " no counsel" or " ineffective" counsel, does not demand a showing of prejudice beyond that demanded under the first requirement. The Court described the two cases to which the second requirement applies:

The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington.

Id. at 1318. In the first of the two posited cases, the second requirement is satisfied simply by showing that the prisoner was not represented by counsel during state PCR proceedings. There is no need to show " prejudice" resulting from the failure of the pro se prisoner during the state PCR proceeding to raise a claim of trial-counsel IAC, over and above the need to satisfy the first Martinez requirement that the underlying trial-court IAC claim be " substantial." In the second of the two posited cases, the Court did not specify the manner in which Strickland should be applied. We conclude, for the narrow purpose of satisfying the second Martinez requirement to establish " cause," that a prisoner need show only that his PCR counsel performed in a deficient manner. A prisoner need not show actual prejudice resulting from his PCR counsel's deficient performance, over and above his required showing that the trial-counsel IAC claim

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be " substantial" under the first Martinez requirement.

This reading of the requirements in the second-posited case, where the prisoner had PCR counsel, is necessary to harmonize the second Martinez requirement with the rest of the Martinez framework. If a prisoner who had PCR counsel were required to show prejudice, in the ordinary Strickland sense, resulting from his PCR counsel's deficient performance in order to satisfy the second Martinez requirement, the prisoner would have to show, as a condition for excusing his procedural default of a claim, that he would succeed on the merits of that same claim. But if a prisoner were required to show that the defaulted trial-counsel IAC claims fully satisfied Strickland in order to satisfy the second Martinez requirement, this would render superfluous the first Martinez requirement of showing that the underlying Strickland claims were " substantial" — that is, that they merely had " some merit." See Martinez, 132 S.Ct. at 1318-19.

Our conclusion is reinforced by Justice Breyer's recent statement in Gallow v. Cooper, 570 U.S. __, 133 S.Ct. 2730, 186 L.Ed.2d 935 (2013) (statement " respecting the denial of the petition for writ of certiorari" ). Justice Breyer, the author of Trevino, indicated in Gallow that once a finding of " cause" under Martinez has been made, a federal habeas court may proceed to the merits of the trial-counsel IAC claim under Strickland. He wrote, " The ineffective assistance of state habeas counsel might provide cause to excuse the default of the claim, thereby allowing the federal habeas court to consider the full contours of Gallow's ineffective-assistance claim." Id. at 2731. That is, cause and prejudice under Strickland are determined separately from, and after, a determination of " cause" under Martinez.

We therefore read the Court's reference to Strickland in the second-posited case of the second requirement (where the prisoner had PCR counsel) to mean the same thing as in the first-posited case (where the prisoner was pro se in PCR proceedings). That is, in both of the posited cases, no showing of prejudice from PCR counsel's deficient performance is required, over and above a showing that PCR counsel defaulted a " substantial" claim of trial-counsel IAC, in order to establish " cause" for the procedural default.

B. Discovery and Evidentiary Hearing

Martinez does not apply to claims that were not procedurally defaulted, but were, rather, adjudicated on the merits in state court. For procedurally defaulted claims, to which Martinez is applicable, the district court should allow discovery and hold an evidentiary hearing where appropriate to determine whether there was " cause" under Martinez for the state-court procedural default and to determine, if the default is excused, whether there has been trial-counsel IAC. The Court recognized in Martinez that determining whether there has been IAC often requires factual development in a collateral proceeding. The Court emphasized that IAC claims can require " investigative work" and development of an " evidentiary basis" that " often turns on evidence outside the trial record." Martinez, 132 S.Ct. at 1317; cf. id. at 1318 (explaining that some states require delaying trial-counsel IAC claims until post-conviction proceedings because " [d]irect appeals, without evidentiary hearings, may not be as effective as other proceedings for developing the factual basis for the claim." ). For example, to determine whether an attorney's performance was deficient, it is often necessary to ask the attorney to state the strategic or tactical reasons for his or her actions. To determine prejudice, it is often

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necessary to authorize discovery and conduct an evidentiary hearing to assess the effect of the attorney's deficient performance.

The Supreme Court held in Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), that a federal habeas court is ordinarily confined to the evidentiary record made in state court. However, Pinholster does not prevent a district court from holding an evidentiary hearing in a Martinez case. Pinholster applies when a " claim" has been " ‘ adjudicated on the merits in State court proceedings.’ " Id. at 1398 (quoting 28 U.S.C. § 2254(d)). But Pinholster 's predicates are absent in the context of a procedurally defaulted claim in a Martinez case in which a habeas petitioner seeks to excuse his default. First, " cause" to excuse a procedural default under Martinez is not a " claim." A finding of IAC by the PCR counsel under Martinez is only an " equitable" ruling that there is " cause" excusing the state-court procedural default. Martinez, 132 S.Ct. at 1319-20. Second, in a Martinez case, neither the underlying IAC claim nor the question of PCR-counsel ineffectiveness has been adjudicated on the merits in a state-court proceeding.

Martinez would be a dead letter if a prisoner's only opportunity to develop the factual record of his state PCR counsel's ineffectiveness had been in state PCR proceedings, where the same ineffective counsel represented him. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (noting the unfairness of applying the restrictive " newly discovered evidence standard" where ineffective assistance of counsel was the reason the evidence was not discovered earlier). The same is true of the factual record of his trial-counsel's ineffectiveness. In deciding whether to excuse the state-court procedural default, the district court thus should, in appropriate circumstances, allow the development of evidence relevant to answering the linked Martinez questions of whether there was deficient performance by PCR counsel and whether the underlying trial-counsel IAC claims are substantial.

If the district court holds an evidentiary hearing before ruling on the Martinez motion, evidence received at that hearing is not subject to the usual habeas restrictions on newly developed evidence. Evidentiary hearings to develop the factual basis of a " claim" are ordinarily governed by 28 U.S.C. § 2254(e)(2). But as we have already noted, a prisoner making a Martinez motion is not asserting a " claim" for relief but instead is seeking, on an equitable basis, to excuse a procedural default. See Martinez, 132 S.Ct. at 1319-20; cf. id. at 1320 (finding that § 2254(i) does not apply to a Martinez motion because " cause" to overcome a procedural default " is not synonymous with a ‘ ground for relief’ " ). Indeed, even with respect to the underlying trial-counsel IAC " claim," given that the reason for the hearing is the alleged ineffectiveness of both trial and PCR counsel, it makes little sense to apply § 2254(e)(2). The Court made the nature of the problem clear in Strickland:

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the critical assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker

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and the appropriate standard should be somewhat lower.

466 U.S. at 694, 104 S.Ct. 2052.

C. New Trial-Counsel IAC Claims

The fact that some trial-counsel IAC claims may have been properly raised by the allegedly ineffective state PCR counsel does not prevent a prisoner from making a Martinez motion with respect to trial-counsel claims that were not raised by that counsel. Nothing in Martinez suggests that a finding of " cause" excuses procedural default only when state PCR counsel raised no claims of trial-counsel IAC whatsoever. Rather, Martinez authorizes a finding of " cause" excusing procedural default of any substantial trial-counsel IAC claim that was not raised by an ineffective PCR counsel, even if some trial-counsel IAC claims were raised.

The Court wrote in Martinez:

Where ... the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective-assistance claim....
As Coleman recognized, an attorney's errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims.

Id. at 1317. The concerns expressed by the Court apply equally to all claims of trial-counsel IAC. As the Court recognized, an ineffective PCR counsel's failure to raise a valid claim of trial-counsel IAC is a denial of fair procedure. It is no less a denial of fair procedure if the ineffective PCR counsel happened to raise other, less viable, claims of trial-counsel IAC.

We therefore read Martinez to allow new claims of trial-counsel IAC, asserted for the first time on federal habeas, even if state PCR counsel properly raised other claims of trial-counsel IAC. The Court implicitly confirmed this reading in Trevino, where it held that Martinez applied to Trevino's procedurally defaulted trial-counsel IAC claims even though Trevino's state PCR counsel had presented other trial-counsel IAC claims during the initial-review collateral proceeding. See Trevino, 133 S.Ct. at 1915-16.

III. Remand to the District Court

We remand to the district court under Martinez to determine, in the first instance, whether there is " cause" to excuse state PCR counsel's procedural default. If the district court finds that there was " cause," it should then address on the merits the substantial trial-counsel IAC claims that it previously held procedurally defaulted under pre- Martinez law. As to these claims, the two-step cause and prejudice test of Strickland applies. Depending on its ruling on the merits of these new trial-counsel IAC claims, the district court may have occasion to revisit its earlier conclusion in this case that the deficient performance of trial counsel did not cause prejudice within the meaning of Strickland.

A standard practice, in habeas and non-habeas cases alike, is to remand to the district court for a decision in the first instance without requiring any special justification for so doing. In cases where there is little doubt about the correct answer, we will sometimes decide an issue in the first instance rather than remand to the district court. But our general assumption is that we operate more effectively

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as a reviewing court than as a court of first instance. We see no reason why a remand to the district court in a Martinez case should be treated differently from a remand in other cases. Indeed, we have remanded Martinez motions for initial decision by the district court on prior occasions, including in Martinez itself. See, e.g., Martinez v. Ryan, 680 F.3d 1160 (9th Cir.2012).

The dissenters in this case believe that Detrich's Martinez motion has so little merit that we can confidently decide it ourselves, with little risk that we will misunderstand the trial-court record or that we will mistakenly conclude that evidentiary development will not alter our view of the case. When we remand to the district court for a decision in the first instance, we usually do not provide a preliminary analysis of the relevant evidence or law. We simply leave it to the district judge to decide the remanded matter. Here, however, we feel compelled to respond to the dissent's conclusion that Detrich's defaulted claims of trial-counsel IAC in this capital case are so obviously meritless that we can safely decide his motion. We therefore describe the state trial record and provide an analysis of why we believe that Detrich's new trial-counsel IAC claims are sufficiently plausible that we should remand to the district court to decide in the first instance whether they are " substantial" within the meaning of Martinez.

The central question is whether any of Detrich's newly presented trial-counsel IAC claims prejudiced him at sentencing. Even if, based on new evidence, the jury were unwilling to find beyond a reasonable doubt that Detrich was the actual killer, it would almost certainly convict him of felony murder. Under the circumstances of this case, a felony-murder conviction would likely still make Detrich death-eligible. However, the trial judge did not sentence Detrich to death for felony murder. Instead, the judge sentenced Detrich to death based on his own conclusion, beyond a reasonable doubt, that Detrich rather than Charlton killed Souter. Thus, in practical effect, Detrich's trial-counsel IAC claims are primarily directed to his sentence rather than his conviction. The question is whether, if the evidence that Charlton was the actual killer were stronger— and the evidence against Detrich therefore weaker— Detrich would nonetheless have been sentenced to death.

To evaluate substantiality under Martinez, it is necessary to assess the evidence at trial. If the evidence that Detrich killed Souter were overwhelming and unassailable, as the dissent contends, then any deficient performance by Detrich's counsel in failing to present additional evidence would be very unlikely to have altered the sentencing judge's conclusion beyond a reasonable doubt that Detrich was the killer. In that event, we could safely conclude that Detrich has no real chance of showing that his new trial-counsel IAC claims are " substantial." But if the trial evidence were close, then it would not take too much new exculpatory evidence to call into question the trial judge's sentencing decision.

We need look no further than the jury verdict to get a general sense of the strength of the evidence. Three out of the twelve jurors refused to convict Detrich of premeditated murder. They were willing to convict Detrich of only felony murder. The dissent contends that these three jurors could have concluded that Detrich was the actual killer, but that he lacked the premeditation necessary for a first-degree murder conviction. See Dissent at 1269 n.7. However, neither the prosecution nor Detrich advocated such a theory at trial. In fact, the prosecution strenuously argued against finding either second-degree murder

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or manslaughter, stating during closing argument that " [t]here is no way ... that one can argue it is not premeditated." None of the witnesses supported a theory of non-premeditated killing either, so there is little reason to believe that the jurors adopted this view of events.

A description of the evidence at trial shows why the jurors may have been hesitant to find that Detrich killed Souter. We first describe the evidence. We then discuss four of Detrich's trial-counsel IAC claims that may be " substantial" under Martinez.

A. Evidence at Trial

Alan Charlton and David Detrich, two white men, were driving in Charlton's car one evening after drinking heavily. They picked up a black woman, Elizabeth Souter. They drove with Souter to a bar where Souter knew to get drugs. They then drove to Souter's house. In the house were Souter's two adult daughters and an adult white woman. The drugs were bad, and Detrich threatened Souter with a small knife because they were bad. Detrich and Charlton then drove away from the house with Souter. Souter's body was discovered in the desert two days later. She had been stabbed numerous times. The critical question in the case was who killed Souter— Detrich or Charlton.

The following evidence was presented at trial. We describe the evidence that Detrich killed Souter, including all of the evidence described by the dissent. Unlike the dissent, we also describe the evidence that Charlton killed her.

1. Events Inside the House

Three adult women were in Souter's house when she came home with Detrich and Charlton— Gwen and Caprice Souter, Souter's daughters; and Tami Winsett, a white woman. Gwen had a baby and never came out of the bedroom. She never saw Detrich or Charlton.

Caprice and Winsett testified that they, Souter, and the two men were together in the living room. They testified that Detrich became angry when he and Souter discovered that the drugs were bad. They testified that Souter took off her dress and lay down on a mattress on the floor. Winsett testified that Detrich then lay down next to Souter and told her that she would have to have sex with him because the drugs were bad. Caprice and Winsett testified that Detrich held a small knife to Souter's throat. No one testified that Detrich in fact had sex with Souter on the mattress.

Winsett testified that she sat on the couch in the living room with Charlton. She testified that Charlton told her he had previously killed someone. Winsett added: " He told me if I lied to him, if I stabbed him in the back, or he said if I fucked him over, he would kill me, too."

Gwen Souter, who was in the bedroom and who never saw Detrich or Charlton, testified that she heard Detrich say, " I will kill you." She identified Detrich as the speaker based solely on the sound of his voice, after hearing Charlton speak in court months later. (Detrich did not testify.) Neither Caprice nor Winsett, who were in the living room with Detrich and the victim, testified that they heard Detrich say " I will kill you." The only witness in the room who testified that she heard a man say he would kill someone was Winsett, who testified that Charlton had said he would kill her.

2. Events Outside the House

Souter was taken outside and put into Charlton's car. It is ...


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