Van Nguyen v. Curry

• Decision Date: 04 December 2013
• Docket Number: No. 11–56792.,11–56792.
• Citation: 736 F.3d 1287
• Parties: HA VAN NGUYEN, Petitioner–Appellant, v. Ben CURRY, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

736 F.3d 1287

HA VAN NGUYEN, Petitioner–Appellant,

v.Ben CURRY, Respondent–Appellee.

No. 11–56792.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 4, 2013.

Filed Dec. 4, 2013.

Gia Kim (briefed), Patricia A. Young (argued), Federal Public Defender's Office, Los Angeles, CA, for Petitioner–Appellant.

Matthew Mulford (argued), Office of the California Attorney General, San Diego, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Central District of California, Josephine Staton Tucker, District Judge, Presiding. D.C. No. 8:08–cv–00198–JST–FFM.

Before: STEPHEN S. TROTT and WILLIAM A. FLETCHER, Circuit Judges, and SIDNEY H. STEIN, District Judge.^*

OPINION

W. FLETCHER, Circuit Judge:

Ha Van Nguyen appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied two of his three claims as procedurally defaulted. Nguyen contends that his procedural default should be excused under the standard for “cause” articulated in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). The Supreme Court in Martinez established an equitable rule under which the failure of an ineffective counsel or pro se petitioner to raise, in a state court initial-review collateral proceeding, a claim of ineffective assistance of counsel (“IAC”) at trial can be “cause” to excuse a state-court procedural default. The question before us is whether Martinez applies to the failure to raise not only a claim of trial-counsel IAC, but also a claim of appellate-counsel IAC. We conclude that it does. We remand to allow the district court to determine in the first instance whether Nguyen's state-court procedural default should be excused under Martinez.

I. Background

On February 26, 2003, Orange County Sheriff Department deputies found Nguyen asleep behind the wheel of his car, stopped at a green traffic light. After he was awakened, Nguyen identified himself to the deputies using a false name and false identification. Nguyen consented to a search of the car. The officers found two pieces of rock cocaine that Nguyen was hiding in his fist. They also found a social security card bearing the name “Kevin Lu,” as well as three driver's licenses bearing different names, including that of Lu.

Nguyen was convicted after a jury trial in California Superior Court of felony cocaine possession, Cal. Health & Safety Code § 11350(a) (“Count One”); felony possession of a forged driver's license with intent to facilitate forgery, Cal.Penal Code § 470b (“Count Two”); and misdemeanor false identification to a peace officer, Cal.Penal Code § 148.9(a) (“Count Three”). The trial court found that Nguyen had previously been convicted of six qualifying felonies and was therefore eligible to be sentenced pursuant to California's three-strikes law. SeeCal.Penal Code § 667. The court imposed a three-strikes sentence of 25 years to life on the forgery conviction, Count Two. The court struck the prior convictions for the felony cocaine possession conviction, Count One, and imposed a three-year concurrent sentence on that count. The misdemeanor conviction, Count Three, was irrelevant to the three-strikes sentence.

On appeal, Nguyen's counsel argued that the prosecution had presented insufficient evidence at trial to support a conviction on Count Two. The California Court of Appeal agreed. It reduced Nguyen's conviction on Count Two to misdemeanor display of a fraudulent driver's license, Cal. Veh.Code § 14610(a)(1), and remanded for resentencing. On remand, the trial court reversed its earlier decision to strike Nguyen's prior convictions for purposes of sentencing under Count One. The court then resentenced Nguyen under Count One to a three-strikes sentence of 25 years to life. At the time of his resentencing under Count One, Nguyen had already served the three-year concurrent sentence previously imposed for that count. The trial court suspended Nguyen's sentence for Counts Two and Three, both of which were now misdemeanor convictions. Nguyen's trial counsel objected that the new sentence on Count One was a “violation of the Fifth, Sixth and Fourteenth Amendments ... in that ... it increases the original punishment on Count One.”

Nguyen appealed again. Nguyen's court-appointed counsel on his second appeal argued that the trial court's decision to reinstate his prior felony convictions for purposes of resentencing under Count One was an abuse of discretion under state law. She also argued that a 25–years–to–life sentence for Count One—felony possession of cocaine—was grossly disproportionate to the crime, constituting cruel and unusual punishment under the Eighth Amendment. She did not make a double jeopardy argument under the Fifth Amendment. The California Court of Appeal affirmed Nguyen's sentence, and the California Supreme Court denied his petition for review.

Nguyen's counsel on his second appeal sent a letter to Nguyen after the California Supreme Court denied his petition. She wrote that her “appointment as [his] attorney ha[d] now come to an end.” She informed Nguyen that if he “wish[ed] to go on to federal court [he] must do so on [his] own.” She did not mention the possibility of filing a state habeas petition.

Now without counsel, Nguyen did not file a petition for habeas corpus in state court. Instead, he filed a timely pro se habeas petition in federal court under 28 U.S.C. § 2254. Nguyen asserted two claims: (1) his new sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment, and (2) his new sentence on Count One violated his Fifth Amendment right to be free from double jeopardy. The first claim had been exhausted in state court; the second claim had not. The magistrate judge granted a stay and abeyance of his federal habeas proceedings to allow Nguyen to exhaust his double jeopardy claim. The magistrate judge also granted a stay and abeyance for an additional claim that appellate counsel on his second appeal had been ineffective in failing to raise a double jeopardy claim. The magistrate judge characterized both the double jeopardy claim and the additional appellate-counsel IAC claim based on the failure to raise the double jeopardy claim as “potentially meritorious.”

Nguyen filed a petition for habeas corpus directly with the California Supreme Court, seeking review of these two unexhausted claims. The California Supreme Court summarily denied the petition, citing In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). A summary denial citing Clark indicates that the California Supreme Court rejects a petition as untimely rather than on the merits. Walker v. Martin, ––– U.S. ––––, 131 S.Ct. 1120, 1126, 179 L.Ed.2d 62 (2011).

Nguyen then filed an amended federal habeas petition, after the expiration of the statute of limitations, asserting three claims for relief: (1) the non-defaulted cruel and unusual punishment claim; (2) the procedurally defaulted double jeopardy claim, and (3) the procedurally defaulted appellate-counsel IAC claim based on the failure to raise the double jeopardy claim. Claims (1) and (2) had been contained in the original, timely filed federal habeas petition. Claim (3) had not been contained in the original petition. The magistrate judge recommended denial of Nguyen's petition with prejudice. He concluded that the state court's determination that Nguyen's sentence did not violate the prohibition against cruel and unusual punishment was not contrary to, or an unreasonable application of, clearly established Supreme Court law. He also concluded that Nguyen had not shown cause and prejudice under Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), to excuse either the state-court procedural default of his double jeopardy claim, or of his appellate-counsel IAC claim for failure to raise the double jeopardy claim. The magistrate judge did not address the State's argument that Nguyen's appellate-counsel IAC claim was untimely under the one-year statute of limitations of 28 U.S.C. § 2244(d). The district court adopted the recommendation in full and dismissed the petition with prejudice. Nguyen timely appealed the denial of his procedurally defaulted double jeopardy claim, and of his procedurally defaulted appellate-counsel IAC claim based on the failure to raise the double jeopardy claim.

II. Discussion

While Nguyen's appeal was pending in this court, the Supreme Court decided Martinez. Nguyen argues in light of Martinez that the procedural default of his appellate-counsel IAC claim should have been excused. The State argues that Martinez does not apply to an underlying appellate-counsel IAC claim. The State also argues that Nguyen's appellate-counsel IAC claim was time-barred because he filed it after the limitations period of 28 U.S.C. § 2244(d) had expired and it did not relate back to the original, timely petition.

A. Martinez and Appellate-counsel IAC

An application for a federal writ of habeas corpus cannot be granted unless the petitioner has exhausted state court remedies or is excused from doing so. 28 U.S.C. § 2254(b)(1)(A). A petitioner exhausts a claim by clearly presenting “to the highest court of the state ... the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326–27 (9th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 558, 181 L.Ed.2d 398 (2011). If a petitioner tries to present a claim to the state court but is prevented from doing so by his failure to comply with a state procedural rule, the claim is “technically exhausted” but procedurally defaulted. Id. at 327.

In the ordinary case, a state-court procedural default may be excused only if a habeas petitioner can demonstrate both “cause” for the default and resulting “prejudice” under Coleman v. Thompson.

“[C]ause” under the cause and prejudice test must be something external to the petitioner, something...