Ninth Circuit Explains Martinez ‘Cause’ and ‘Prejudice’ to Excuse Procedural Default in Federal Habeas Proceeding Where Claim of IAC in State Proceedings Was Procedurally Defaulted Due to Postconviction Counsel’s Failure to Timely Raise Claim
by Douglas Ankney
The U.S. Court of Appeals for the Ninth Circuit explained the “cause and prejudice” framework of Martinez v. Ryan, 566 U.S. 1 (2012), in the context of a federal habeas proceeding where a claim of ineffective assistance of counsel at trial (“Trial IAC”) in a state habeas proceeding was procedurally defaulted due to postconviction counsel’s (“PCC”) failure to timely raise the Trial IAC claim in state court.
Robert Marc Leeds and his estranged wife Sally Lane shared a home on Evening Song Avenue in Las Vegas, Nevada. Lane had become romantically involved with William Scarborough. Since Lane’s family didn’t know Leeds lived with her and were planning to visit during Thanksgiving, Leeds agreed to temporarily move out of the shared home while Lane’s family visited.
Leeds later learned that Lane’s family wasn’t at the home, so he went there to retrieve medication. A heated argument occurred when Lane and Scarborough returned from a night out. Police were called and advised that Leeds had a right to be at the home because he resided there; Lane would have to commence eviction proceedings if she wanted him out of the home. Leeds voluntarily agreed to leave the premises for the evening.
The next morning, Leeds went to the home and apologized for his behavior the previous night. He agreed to go to Florida for a while to be with his family but stated he and Lane could reconcile. However, Scarborough was also present at the home and told Lane to “stay strong” in her decision to separate from Leeds.
Scarborough agreed to give Leeds a ride to the airport, but the two men began fighting. They fell to the ground and rolled into the garage. Leeds claimed to have taken a knife from Scarborough, stabbed him in the chest, and said: “Die like the animals you kill.” (Scarborough worked at an animal shelter where he euthanized animals that had to be put down.) Scarborough died from his injuries.
The State charged Leeds with murder, use of a deadly weapon, and burglary while in possession of a deadly weapon. The burglary charge was alleged because the prosecutor argued that Leeds intended to “assault, batter, or murder” Scarborough when the two men entered the garage while struggling. At trial, the jury was instructed on two theories of first-degree murder: (1) willful, deliberate, and premeditated and (2) felony-murder predicated on the alleged burglary. The prosecutor explained to the jury in closing that “it did not matter if the jurors agreed on one theory: they could convict Leeds of first-degree murder as long as they all thought one of the two theories applied.”
The jury convicted Leeds on all charges, but the verdict form did not specify which theory of murder the jury relied upon to convict him of first-degree murder. Leeds was sentenced to 20 years to life on the murder conviction, and his judgment was affirmed on appeal.
Leeds subsequently initiated a pro se habeas petition in state court. The district court ultimately appointed PCC who filed a supplemental petition alleging numerous errors of trial counsel, but PCC did not allege trial counsel was ineffective for failing to challenge the felony-murder theory on the ground that Leeds could not burglarize his own home (“Burglary Theory”). The state court denied Leeds’ habeas petition, and he timely appealed to the Nevada Supreme Court (“NSC”). During this appeal, PCC asserted for the first time the Trial IAC claim based on the Burglary Theory. The NSC denied the habeas petition, explicitly declining to consider the Trial IAC claim based on the Burglary Theory because that “ground for relief was not raised in Leeds’ post-conviction petition for a writ of habeas corpus or argued in the district court below.” Consequently, this claim was procedurally defaulted and never reviewed by a state court. See Nev. Rev. Stat. § 34.810(1)(b).
Leeds petitioned the U.S. District Court for the District of Nevada for federal habeas relief under 28 U.S.C. § 2254 (“Federal Habeas”). Ground Two of the Federal Habeas alleged that trial counsel “was ineffective for failing to challenge the burglary charge and felony murder theory on the ground that Mr. Leeds could not burglarize his own home.” The District Court granted habeas relief as to Ground Two, finding that the procedural default was excused under Martinez and trial counsel provided ineffective assistance of counsel. The State timely appealed.
The Court observed “[w]here, as here, a petitioner’s claim was procedurally defaulted in a state habeas proceeding, he must show the default was excused in order for federal habeas review to occur.” Martinez. That is, a petitioner may only “obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.” Id.
The U.S. Supreme Court has instructed that postconviction counsel’s error can establish cause to excuse procedural default of a claim for trial counsel’s ineffective assistance where state procedure requires a prisoner to raise that claim for the first time during postconviction proceedings. Martinez. Under Nevada law, “a post-conviction collateral proceeding is the first opportunity to raise ineffective assistance of counsel claims.” Gibbons v. State, 634 P.2d 1216 (Nev. 1981). Where the state habeas court is the only court to review the merits of Trial IAC claims, the Court explained “Martinez held that an effective attorney is required in these initial-review collateral proceedings, and ineffective assistance by post-conviction counsel can establish cause for default.”
To meet the “cause” standard of Martinez, the petitioner must demonstrate that PCC in the initial-review state collateral proceeding in which the Trial IAC claim should have been raised was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the petitioner must demonstrate that (1) PCC’s performance was deficient – that is, counsel’s performance fell below an objective standard of reasonableness and (2) PCC’s deficient performance prejudiced the petitioner, i.e., if not for counsel’s unreasonable performance, there is a reasonable probability the outcome of the proceeding would have been different. Strickland. Therefore, to meet Martinez’s “cause” standard, a petitioner must demonstrate that his PCC rendered deficient performance and that the deficient performance prejudiced the petitioner.
To satisfy Martinez’s “prejudice” standard, “a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the petitioner must demonstrate that the claim has some merit.” Martinez. Because both cause and prejudice must be established, courts are free to analyze the two requirements in any order. See Michaels v. Davis, 51 F.4th 904 (9th Cir. 2022) (addressing prejudice first); Djerf v. Ryan, 931 F.3d 870 (9th Cir. 2019) (addressing only cause).
Federal courts must first conclude that a procedural default is excused under Martinez before they may address the merits of the underlying Trial IAC claim. See Martinez (“A finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted.”). The Court also explained that when determining whether trial counsel was ineffective for purposes of a Martinez analysis, “we again use the Strickland standard, though we do not apply it as strictly as if we were considering the merits of the claim.” See Michaels v. Davis, 51 F.4th 904 (9th Cir. 2022).
In deciding Leeds’ petition, the Court first examined whether he satisfied Martinez’s prejudice standard. The rationale is, if the procedurally defaulted claim has no merit, then it does not matter if the claim was procedurally defaulted due to PCC error. Leeds’ Trial IAC claim was that, had his trial counsel argued that Leeds could not burglarize his own home, the State would have been prevented from relying on the felony-murder theory, and since the State could not prove willful, deliberate, and premeditated murder, the jury could not have found him guilty of first-degree murder.
In State v. White, 330 P.3d 482 (Nev. 2014), the NSC held that a person cannot burglarize his own home. The State argued that Leeds’ trial counsel couldn’t have provided ineffective assistance because his trial occurred in 2006 – years before White was decided. See Sophanthavong v. Palmateer, 378 F.3d 859 (9th Cir. 2004) (“Strickland does not mandate prescience, only objectively reasonable advice under prevailing professional norms.”). The Court rejected that argument, explaining that simply because the issue wasn’t definitively decided until 2014 doesn’t mean it was reasonable for a defense attorney not to have made the argument before White. As the White Court noted, the state’s burglary statute was subject to two reasonable interpretations, including the one White eventually held to be correct. The Court stated that reasonable counsel would have made the argument for the interpretation that would have kept his client from facing a felony-murder charge. Therefore, the Court concluded that Leeds’ trial counsel performed unreasonably or “deficiently.”
Having satisfied the deficiency prong of Martinez’s prejudice requirement, the Court turned to the second prong of whether counsel’s deficient performance prejudiced Leeds. The Court concluded that he also satisfied the prejudice prong because if the jury had not been instructed on the felony-murder theory “at least one juror may have not been convinced beyond a reasonable doubt that Leeds – distraught after discovering that his partner of twenty years was moving on – committed willful, deliberate, and premeditated murder.” Therefore, the Court ruled that Leeds established that his Trial IAC claim is “substantial” and thus satisfies Martinez’s prejudice requirement.
The Court then addressed whether Leeds’ PCC provided ineffective assistance under Strickland, thereby satisfying Martinez’s cause requirement. That is, Leeds must show that PCC’s failure to raise the Burglary Theory constituted ineffective assistance under the Strickland standard, i.e., “deficient performance,” and PCC’s deficient performance prejudiced Leeds. Martinez. For this analysis, the Court explained, “we reviewed trial counsel’s action in our Martinez analysis under a more relaxed standard … we apply the Strikland standard with full force when considering PCC’s action in the Martinez cause analysis.” See Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014).
The Court began with the deficient performance prong of the Martinez cause analysis. Once again, the State argued that PCC couldn’t have performed deficiently in 2013 because White was decided a year later. And once again, the Court rejected that argument based on the same reasoning it rejected the argument in its Martinez prejudice analysis. Just as trial counsel should have challenged the Burglary Theory at trial, it was unreasonable for PCC to also fail to make the argument. Therefore, the Court concluded that PCC performed deficiently.
Finally, the Court turned to the issue of whether PCC’s deficient performance prejudiced Leeds and thereby satisfied Strickland’s second prong, which in turn would establish cause under Martinez. The Court explained that whether Leeds was prejudiced by PCC depends partially on the strength of his underlying Trial IAC claim because if it were meritless, then PCC would not be ineffective for failing to raise it. See Djerf; see also Sexton v. Cozner, 679 F.3d 1150 (9th Cir. 2012).
However, the Court already determined that Leeds’ Trial IAC claim was “substantial” during its Martinez prejudice analysis, so given the strength of the claim, there is a reasonable probability PCC would have had success with the claim had it been raised. As such, there is a substantial likelihood the result would have been different but for PCC’s failure to make the argument, the Court determined. See Harrington v. Richter, 562 86 (2011) (describing the Strickland prejudice standard). Therefore, the Court concluded that PCC’s failure to assert the Trial IAC claim prejudiced Leeds, thereby satisfying Martinez’s cause requirement.
Because the Court concluded that Leeds satisfied both the prejudice and cause prongs of Martinez, it held his procedural default was excused. In addition, the Court held that Leeds also satisfied Strickland regarding the merits of his Trial IAC claim, and so, the District Court did not err in granting him habeas relief.
Accordingly, the Court affirmed the decision of the District Court in excusing the procedural default and granting habeas relief. See: Leeds v. Russell, 75 F.4th 1009 (9th Cir. 2023).
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