Paul Rhoades v. Randy Blade

Filing

Filed per curiam opinion (RONALD M. GOULD, JAY S. BYBEE and CARLOS T. BEA) We consider Paul Ezra Rhoades s Motion for a Stay of Execution Pending United States Supreme Court Decision in Martinez v. Ryan, No. 10-1001 (cert. granted June 6, 2011). (See opinion for full text) Rhoades's Motion to Proceed In Forma Pauperis is GRANTED. Rhoades s Motion for a Stay of Execution Pending United States Supreme Court Decision in Martinez v. Ryan is DENIED. Also, to the extent his related requests for new counsel to be appointed and for leave to file a successive habeas corpus petition are properly before us now, those requests are also DENIED. [7969870]

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FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

NOV 17 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

PAUL EZRA RHOADES,

No. 11-80283

Petitioner,
v.
OPINION
RANDY BLADES,
Respondent.

Before: GOULD, BYBEE, and BEA, Circuit Judges.
Per Curiam:
We consider Paul Ezra Rhoades’s Motion for a Stay of Execution Pending
United States Supreme Court Decision in Martinez v. Ryan, No. 10-1001 (cert.
granted June 6, 2011). Rhoades seeks a stay of his impending execution, leave to
file successive petitions for habeas corpus relief in his two capital cases under 28
U.S.C. § 2244(b)(3)(A), and appointment of new counsel to represent him in
pursuing those petitions. Rhoades contends that his federal habeas corpus counsel,
some of whom continue to represent him in this motion, were unconstitutionally
ineffective because they did not have Rhoades tested for brain damage when
litigating his claim that trial counsel had ineffectively represented Rhoades during

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the penalty phase of his two capital trials. He acknowledges that “courts have
uniformly rejected the claim that there is a constitutional right to effective
assistance of counsel in post-conviction proceedings,” and that the only way he
could be entitled to file a successive petition is if the Supreme Court holds that
there is such a right in Martinez.
This motion was filed less than 48 hours before Rhoades’s pending
execution. We consider “not only the likelihood of success on the merits and the
relative harms to the parties, but also the extent to which the inmate has delayed
unnecessarily in bringing the claim,” recognizing that there is a “strong equitable
presumption against the grant of a stay where a claim could have been brought at
such a time as to allow consideration of the merits without requiring entry of a
stay.” Nelson v. Campbell, 541 U.S. 637, 649–50 (2004). Rhoades could have
brought his claim any time after the Supreme Court granted certiorari in Martinez,
more than five months ago. Further, the case was argued to the United States
Supreme Court on October 4th, and Rhoades could have made assertions informed
by that argument after that date. However, there is no legitimate reason for
bringing this motion at the 11th hour, and Rhoades offers no argument to
overcome this equitable presumption.

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But even if Rhoades could overcome this presumption, he must also
demonstrate that he is likely to succeed on the merits of his successive habeas
corpus petition. See Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011). This
would require the Supreme Court to announce a new rule in Martinez that is both
retroactively applicable under 28 U.S.C. § 2244(b)(2)(A) and applies to the facts of
Rhoades’s case. In Martinez, we found petitioner was procedurally defaulted from
asserting ineffective assistance of trial counsel because his state-appointed
appellate counsel had failed to raise this claim in his initial state post-conviction
proceeding. Martinez v. Schriro, 623 F.3d 731, 743 (9th Cir. 2010). In contrast,
Rhoades’s federal habeas corpus counsel presented his fully developed ineffective
assistance of counsel claim, which we rejected on the merits. See Rhoades v.
Henry, 596 F.3d 1170, 1189 (9th Cir. 2010). Rhoades now contends that his
counsel was unconstitutionally ineffective because, while counsel sought the
opinion of a neuropsychologist and a psychiatrist, counsel did not have Rhoades
tested for brain damage. Rhoades argues the results of this test would have
established that trial counsel was unconstitutionally ineffective because trial
counsel failed to investigate, develop, and present mental state issues. These issues
were well presented by counsel, and we analyzed them and rejected them on the
merits. Id. at 1189–95.
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We decline to speculate as to why the Supreme Court granted certiorari in
Martinez or what its eventual holding may be. But there are substantial procedural
differences between Martinez’s and Rhoades’s situation. It is entirely speculative
to think that the Supreme Court might render a ruling in Martinez totally altering
the long-standing rule that an ineffective assistance of counsel claim cannot be
brought as to post-conviction proceedings. Even if the court establishes some
exception in Martinez, there is no certainty, and we think no substantial likelihood
that its scope would cover Rhoades’s last minute claims and be made retroactive.
Also, Rhoades’s underlying argument that federal habeas corpus counsel
ineffectively litigated his ineffective assistance of counsel claim is in our view
unlikely to satisfy the requirements of Strickland v. Washington, 466 U.S. 668, 687
(1984), under which he would have to show both deficient performance and
prejudice. Rhoades’s speculation that granting this motion may ultimately allow
him to overturn his death sentence via a successive habeas corpus petition is just
that—speculation—and does not meet his burden to establish that he is likely to
succeed on the merits.
Rhoades's Motion to Proceed In Forma Pauperis is GRANTED. Rhoades’s
Motion for a Stay of Execution Pending United States Supreme Court Decision in
Martinez v. Ryan is DENIED. Also, to the extent his related requests for new
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counsel to be appointed and for leave to file a successive habeas corpus petition are
properly before us now, those requests are also DENIED.

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Counsel Page
Oliver Loewy, Teresa A. Hampton, Capital Habeas Unit, Federal Defender
Services of Idaho, Boise, Idaho for Petitioner Paul Ezra Rhoades.
L. LaMont Anderson, Deputy Attorney General, Chief, Criminal Law
Division Capital Litigation Unit, Boise, Idaho for Respondent Randy Blades.

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