Anthony Juniper v. Keith Davi

Filing

Published Court order filed [999255954] vacating district court's decision in part, remanding case for limited purpose [4cca retains jurisdiction]; deferring action on Motion to expand certificate of appealability (Local Rule 22(a)) filed by Appellant Anthony Bernard Juniper [999140468-2]; deferring action on Motion to exceed page length filed by Appellant Anthony Bernard Juniper [999140467-2]; deferring action on Motion for leave to file a reply to the government's response filed by Appellant Anthony Bernard Juniper [999156874-2]. Copies to all parties. [13-7]

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FILED:

December 10, 2013

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7

ANTHONY BERNARD JUNIPER,
Petitioner - Appellant,
v.
KEITH W. DAVIS, Warden, Sussex I State Prison
Respondent - Appellee.

O R D E R

GREGORY, Circuit Judge:
Petitioner

Anthony

Bernard

Juniper

was

convicted

in

the

Circuit Court for the City of Norfolk on four counts of capital
murder

and

other

related

felony

charges.

Following

a

jury

trial, Juniper was sentenced to death for each of the capital
murder convictions.

The jury found the death sentence justified

by two aggravating factors, vileness and future dangerousness.
The Supreme Court of Virginia affirmed Juniper’s convictions and
sentences, and the Supreme Court of the United States denied

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certiorari.

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See Juniper v. Commonwealth, 626 S.E.2d 383 (Va.),

cert. denied, 127 S. Ct. 397 (2006).
Juniper filed a petition for writ of habeas corpus in the
Supreme Court of Virginia, which was ultimately dismissed.

See

Juniper

290

v.

Warden

of

Sussex

I

State

Prison,

(Va.), cert. denied, 132 S. Ct. 822 (2011).

707

S.E.2d

Juniper then filed

his federal habeas petition in the United States District Court
for the Eastern District of Virginia.

The district court denied

Juniper’s petition, see Juniper v. Pearson, No. 3:11-cv-00746,
2013 WL 1333513 (E.D. Va. 2013), but issued a certificate of
appealability on two issues:

(1) whether the district court

correctly determined that Juniper’s allegations in Claim I of
his federal habeas petition failed to satisfy the materiality
standard

under

(2) whether

Brady

Juniper

v.

was

Maryland,
entitled

373

to

U.S.

the

83

(1963);

appointment

of

and
new

counsel under Martinez v. Ryan, 132 S. Ct. 1309 (2012).
We

requested

expedited

briefing

on

the

second

issue,

asking:
Should this case be vacated and remanded under the
reasoning of this court’s order in Gray v. Pearson,
No. 12-5, 2013 WL 2451083 (4th Cir. June 7, 2013)[?]
Having considered the parties’ responses, we find the reasoning
of Gray equally applicable to the case at hand, and vacate in
part and remand for further proceedings consistent with this
order.
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The

in

it

Court

petitioner

is

entitled

ineffectiveness
procedurally

Gray

of

made
to

state

barred

clear

independent
habeas

why

a

federal

counsel

counsel

in

habeas

to

pursue

order

to

the

raise

“ineffective-assistance-of-trial-counsel”

claims in the happenstance that the petitioner is represented by
the same counsel in both federal and state habeas proceedings.
Therefore, we only provide a short recitation of the facts and
reasoning of Gray, as we adopt Gray’s reasoning in toto.
While federal habeas proceedings were pending in Gray, the
Supreme Court issued Martinez v. Ryan, deciding that “[w]here,
under

state

counsel

law,

must

claims

be

of

raised

ineffective

in

an

assistance

initial-review

of

trial

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.”
132 S. Ct. at 1320.

Thus, for states like Virginia – where a

petitioner can only raise an ineffective assistance claim on
collateral

review

–

Martinez

announced

that

federal

habeas

counsel can investigate and pursue the ineffectiveness of state
habeas

counsel

procedurally

in

an

barred

effort

to

overcome

the

default

of

ineffective-assistance-of-trial-counsel

claims.

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In accordance with Martinez, the Gray panel held that the
petitioner was entitled to independent counsel in his federal
habeas proceedings to investigate and pursue the ineffectiveness
of state habeas counsel, rightly espousing “a clear conflict of
interest exists in requiring [petitioner’s] counsel to identify
and investigate potential errors that they themselves may have
made

in

failing

to

uncover

ineffectiveness

of

trial

counsel

while they represented [petitioner] in his state post-conviction
proceedings.”

2013 WL 2451083, at *3. 1

Based on the reasoning

of the Gray order, we find that the same outcome is required
here.
Martinez

was

decided

during

federal habeas proceedings.

the

pendency

of

Juniper’s

Juniper had the same counsel in

both his state and federal habeas proceedings, and then after
Martinez,

petitioned

the

district

court

to

appoint

independent counsel to pursue his claims under Martinez.
all

relevant

purposes,

Juniper’s

1

case

is

on

all

new,
For
fours

Notably, it did not matter to the Gray panel that
petitioner
did
not
identify
a
substantial
ineffectiveassistance-of-trial-counsel claim under Martinez, see Gray, 2013
WL 2451083, at *3, a reason that compelled the district court to
deny Juniper’s motion for independent counsel. As in Gray, the
fact that Juniper did not identify a substantial claim under
Martinez is irrelevant to our disposition of this case.

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procedurally with Gray. 2

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And as in Gray, we find it ethically

untenable to require counsel to assert claims of his or her own
ineffectiveness
adequately

in

present

the

state

habeas

defaulted

proceedings

in

order

to

ineffective-assistance-of-trial-

counsel claims under Martinez in the federal habeas proceedings.
To be clear, if a federal habeas petitioner is represented
by the same counsel as in state habeas proceedings, and the
petitioner requests independent counsel in order to investigate
and pursue claims under Martinez in a state where the petitioner
may only raise ineffective assistance claims in an “initialreview collateral proceeding,” qualified and independent counsel
is ethically required.
for

appointment

underlying

of

motion

A district court must grant the motion

counsel

without

identifies

a

assistance claim under Martinez.
*3

(“The

fact,

even

if

true,

2

regard

to

‘substantial’

whether

the

ineffective

See Gray, 2013 WL 2451083, at
that

Gray’s

counsel

did

not

The only arguably relevant distinction between Gray and
the case at hand is that Juniper had a second chair counsel
appointed for his federal habeas proceedings who did not
represent him in state habeas proceedings.
The second chair,
however, is not qualified under 18 U.S.C. § 3599(c) to represent
Juniper independently, and therefore this distinction is of no
moment.
An attorney who is not authorized to represent a
federal habeas petitioner independently necessarily fails to
serve as the independent counsel called for in Gray. Juniper is
entitled to qualified, independent counsel at all stages of his
capital habeas proceedings, including the investigation of
claims under Martinez.
See Martel v. Clair, 132 S. Ct. 1276
(2012).
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identify any ‘sufficient[ly] substantial’ claim under Martinez
does

not

undercut

their

request

that

independent

counsel

be

appointed to explore Gray’s Martinez claims.”) (alterations in
original).
We
respect

vacate
only

to

in

part

the

the

district

appointment

of

court’s

independent

decision

with

counsel,

and

remand for further proceedings in accordance with this order.
We defer consideration of Juniper’s pending motion to expand the
certificate of appealability, motion to exceed page length, and
motion for leave to file a reply to the government’s response.
Entered

at

the

direction

of

Judge

Gregory,

with

the

concurrence of Judge Wynn and Judge Diaz.

For the Court
/s/ Patricia S. Connor, Clerk

6