Martinez v. Schriro, 09-15170.

• Decision Date: 27 September 2010
• Docket Number: No. 09-15170.,09-15170.
• Citation: 623 F.3d 731
• Parties: Luis Mariano MARTINEZ, Petitioner-Appellant, v. Dora SCHRIRO, Director of the Arizona Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

623 F.3d 731

Luis Mariano MARTINEZ, Petitioner-Appellant,

v.Dora SCHRIRO, Director of the Arizona Department of Corrections, Respondent-Appellee.

No. 09-15170.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 11, 2010.

Filed Sept. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

Robert Bartels, Esq., Tempe, AZ, for petitioner-appellant Luis Mariano Martinez.

John P. Todd, Esq., Deputy State Attorney General, Phoenix, AZ, for respondents-appellees Dora Schriro, et al.

Appeal from the United States District Court for the District of Arizona, James A. Teilborg, District Judge, Presiding. D.C. No. 2:08-cv-00785-JAT.

Before: J. CLIFFORD WALLACE, PROCTER HUG, JR. and RICHARD R. CLIFTON, Circuit Judges.

OPINION

WALLACE, Senior Circuit Judge:

Martinez, a prisoner in the custody of the Arizona Department of Corrections, petitioned for a writ of habeas corpus. Martinez alleges that he received ineffective assistance of counsel at trial, but that his state-appointed appellate counsel failed to raise this claim in the first state post-conviction relief proceeding brought on his behalf. Martinez asserts a federal constitutional right to the effective assistance of counsel in connection with his state proceeding. He contends that the right of an indigent defendant to the assistance of appellate counsel is fundamentally a right to counsel in connection with the presentation of a claim of error at the first tier of review. Collateral review presented the first opportunity, under Arizona law, at which Martinez could assert an ineffective-assistance-of-trial-counsel claim. Martinez therefore reasons that he has a right to the effective assistance of counsel in the first post-conviction relief proceeding in which he could present a claim of ineffective assistance by his trial counsel.

The district court had jurisdiction over Martinez' habeas petition pursuant to 28 U.S.C. §§ 2241(a) and 2254(a). The district court denied the petition on the basis that it was procedurally defaulted. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We affirm.

I.

Martinez is serving two consecutive terms of 35 years to life, following his conviction for two counts of sexual conduct with a person under the age of fifteen. With the assistance of state-appointed counsel, Martinez pursued a direct appeal of his conviction. The Arizona Court of Appeals affirmed Martinez' conviction, and the Arizona Supreme Court denied review. On direct appeal, Martinez raised issues that are not pertinent to our review of his federal habeas petition.

In May 2002, during the pendency of his direct appeal, Martinez' state-appointed appellate counsel initiated an Arizona post-conviction relief proceeding on his behalf, pursuant to Arizona Rule of Criminal Procedure 32.4.a, pursuant to which a convicted defendant commences collateral review by filing a “Notice of Post-Conviction Relief.” The defendant's claims are to be stated in a subsequent “petition.” See Ariz. R.Crim. Pro. 32.4.c(2), 32.5; Ariz. R.Crim. Pro. Form 24(b). Martinez asserts that his counsel filed the Notice of Post-Conviction Relief, thereby initiating Rule 32 post-conviction relief proceedings, without prior notice to him and without his authorization.

Martinez' counsel thereafter filed a statement in the Rule 32 action asserting that she had “reviewed the transcripts and trial file and [could] find no colorable claims pursuant to Rule 32.” Cf. State v. Smith, 184 Ariz. 456, 910 P.2d 1, 4 (1996) (explaining that if “after conscientiously searching the record for error, appointed counsel in a [post-conviction relief] proceeding finds no tenable issue and cannot proceed, the defendant is entitled to file a pro per PCR,” and counsel must so notify the court and the client). In this same statement, counsel requested that the court grant Martinez 45 days in which to file a pro se petition in support of post-conviction relief. Martinez alleges that his counsel filed this statement without prior notice to him and without his consent. He alleges that his counsel also failed to advise him that he needed to file a pro se petition. Martinez alleges that he did not file a petition because his counsel “failed effectively to inform Petitioner that he needed to file his own petition.” On April 28, 2003, after time had expired for Martinez to file a petition, the trial court dismissed the Rule 32 action for post-conviction relief.

On October 18, 2004, represented by new counsel, Martinez filed a second “Notice of Post-Conviction Relief” in Arizona Superior Court. Martinez filed a timely supporting petition on February 7, 2005. This petition alleged that Martinez' trial counsel was ineffective in several respects, amounting to ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment constitutional rights.

The Arizona Superior Court dismissed Martinez' second action for post-conviction relief as “precluded” under Arizona Rule of Criminal Procedure 32.2.a and also as without merit. Arizona Rule of Criminal Procedure 32.2. a(3) precludes a defendant from receiving relief based upon any ground that, inter alia, “has been waived at trial, on appeal, or in any previous collateral proceeding.” In effect, the Arizona Superior Court deemed Martinez' claims to be procedurally defaulted because he had failed to raise them in his first Rule 32 action for post-conviction relief. Martinez sought review in the Arizona Court of Appeals. That court granted review, but denied relief to Martinez on the basis that his claims were precluded. Martinez sought further review by the Arizona Supreme Court, which denied review without opinion.

Having exhausted the avenues of relief available in state court, Martinez turned to the federal court. On April 24, 2008, he filed the present action, petitioning for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241(a) and 2254(a). Martinez' federal petition again asserted an ineffective-assistance-of-trial-counsel claim. The district court denied Martinez' petition as procedurally defaulted. The district court issued a certificate of appealability, however, with respect to two related issues: “1) whether Arizona's procedural bar, as applied to this case, is an adequate and independent state law ground for denying relief; [and] 2) whether Petitioner has shown cause to excuse his procedural default.”

II.

Martinez' habeas petition is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). When reviewing a petition for a writ of habeas corpus, federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Thomas v. Goldsmith, 979 F.2d 746, 749 (9th Cir.1992). This rule applies to both substantive and procedural state law grounds. Coleman, 501 U.S. at 729, 111 S.Ct. 2546. The state law ground at issue in this case is procedural.

In order to bar federal review, the state procedural rule “must have been firmly established and regularly followed” at the time of the purported procedural default. Fields v. Calderon, 125 F.3d 757, 760 (9th Cir.1997), quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (internal quotation marks and citation omitted); see also Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.1994) (state procedural bar “must be clear, consistently applied, and well-established at the time of the petitioner's purported default”). A state procedural rule may be “inadequate” to preclude federal review, however, if it frustrates the exercise of a federal right. See Hoffman v. Arave, 236 F.3d 523, 531 (9th Cir.), cert. denied, 534 U.S. 944, 122 S.Ct. 323, 151 L.Ed.2d 241 (2001).

Where a habeas petitioner “has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule,” the federal courts may not review the petition, “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. To establish cause for a procedural default, a petitioner must show that the default was due to an “objective factor” that was “external” to him and could not “fairly be attributed to him.” Id. at 753, 111 S.Ct. 2546; see also Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (petitioner must show “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule”).

We review the district court's denial of Martinez' petition for writ of habeas corpus de novo. Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir.2004).

III.

The Arizona Court of Appeals concluded that Martinez' ineffective-assistance-of-trial-counsel claim was procedurally defaulted by application of Arizona Rule of Criminal Procedure 32.2, which provides that a

defendant shall be precluded from relief under this rule based upon any ground:

(1) Raisable on direct appeal under Rule 31 or on post-trial motion under Rule 24; (2) Finally adjudicated on the merits on appeal or in any previous collateral proceeding; (3) That has been waived at trial, on appeal, or in any previous collateral proceeding.

Ariz. R.Crim. Pro. 32.2. The district court concluded that this state procedural rule was an “adequate and independent” basis to bar federal habeas corpus review, and that there was not cause and prejudice to excuse the default.

Martinez argues that the state procedural rule is not “adequate and independent” to bar federal review because it would frustrate the exercise of his federal constitutional right to the effective assistance of counsel....