Luke Hunton v. Stephen Sinclair

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, WILLIAM A. FLETCHER and JOHNNIE B. RAWLINSON) AFFIRMED. Judge: FFF Authoring, Judge: WAF Dissenting, Judge: JBR . FILED AND ENTERED JUDGMENT. [8818362]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LUKE M. HUNTON,
Petitioner-Appellant,
v.

No. 12-35363
D.C. No.
2:06-cv-00054FVS

STEPHEN SINCLAIR, Superintendent,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted
March 5, 2013—Seattle, Washington
Filed October 11, 2013
Before: Ferdinand F. Fernandez, William A. Fletcher,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Fernandez;
Dissent by Judge W. Fletcher

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SUMMARY*

Habeas Corpus
The panel affirmed the district court’s partial dismissal of
a 28 U.S.C. § 2254 habeas corpus petition raising a
procedurally defaulted claim, because the claim was barred
by Coleman v. Thompson, 501 U.S. 722 (1991), and not
subject to the exception recognized by Martinez v. Ryan,
132 S. Ct. 1309 (2012), for instances where trial counsel was
ineffective and the claim could not be raised earlier.
Judge W. Fletcher dissented. He would conclude that the
equitable rule established in Martinez applies when a
petitioner procedurally defaulted his claim while acting pro
se during his initial collateral review proceedings in state
court. He would reverse the district court’s decision and
remand to allow the court to determine whether petitioner can
satisfy the Martinez test that would allow an excuse of his
procedural default.

COUNSEL
Matthew Campbell, Assistant Federal Public Defender,
Federal Public Defender’s Office, Spokane, Washington, for
Petitioner-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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John Joseph Samson (argued), Assistant Attorney General,
Corrections Division, Robert M. McKenna, Attorney General,
Attorney General’s Office, Olympia, Washington, for
Respondent-Appellee.

OPINION
FERNANDEZ, Circuit Judge:
Luke M. Hunton appeals the district court’s dismissal of
part of his petition for a writ of habeas corpus. See 28 U.S.C.
§ 2254. He asserts that because he is raising a Brady1 claim,
he is not bound by the holdings of Coleman v. Thompson,
501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991), that
preclude relief when a claim was not exhausted during the
post-conviction review process on account of lack of counsel
or ineffective assistance of counsel. We affirm.
BACKGROUND
After Hunton was convicted in the State of Washington of
bank robbery and sentenced to imprisonment for life, he
appealed and raised a claim that his due process right to
discovery had been violated. See Brady, 373 U.S. at 87,
83 S. Ct. at 1196–97. The Washington Court of Appeals, in
effect, informed him that the claim must be raised in postconviction relief proceedings. He, without benefit of counsel,
did file a post-conviction relief proceeding, but did not raise
the Brady claim. When review of the claims he did raise was
denied, he filed this petition for habeas corpus relief in the
1

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).

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district court. The district court ultimately dismissed the
Brady claim because Hunton had procedurally defaulted in
the state courts. He appeals and asserts that he can now raise
the claim despite that default. We disagree.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review the district court’s denial of his petition for habeas
corpus relief de novo. See Lopez v. Schriro, 491 F.3d 1029,
1036 (9th Cir. 2007). By the same token, we review the
district court’s dismissal of his Brady claim due to procedural
default de novo. See Scott v. Schriro, 567 F.3d 573, 580 (9th
Cir. 2009).
DISCUSSION
While Hunton agrees, as he must, that he did procedurally
default on his Brady claim, he asserts that he may still pursue
it because he was deprived of counsel at his post-conviction
relief proceeding. However, that pursuit is blocked by a
barrier that the Supreme Court clearly recognized over twenty
years ago. See Coleman, 501 U.S. at 752–53, 111 S. Ct. at
2566. There, the Court declared that the petitioner’s assertion
that a claim had been defaulted at his post-conviction relief
proceeding due to ineffective assistance of counsel at that
proceeding must fail because:
There is no constitutional right to an attorney
in state post-conviction proceedings.
Consequently, a petitioner cannot claim
constitutionally ineffective assistance of
counsel in such proceedings. Coleman
contends that it was his attorney’s error that

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led to the late filing of his state habeas appeal.
This error cannot be constitutionally
ineffective; therefore Coleman must “bear the
risk of attorney error that results in a
procedural default.”
Id. (internal citations omitted). That would end our
discussion, but there is a more recent development to
consider.
In 2012, the Supreme Court gave further consideration to
the general rule. See Martinez v. Ryan, __ U.S. __, 132 S. Ct.
1309, 182 L. Ed. 2d 272 (2012). In that case, the Court did
create one exception to Coleman; it declared that where
ineffective assistance of counsel in a post-conviction relief
proceeding results in a failure to assert that there was
ineffective assistance of counsel in the trial proceedings, the
claim would be cognizable. Id. at __, 132 S. Ct. at 1320.
But, said the Court:
The rule of Coleman governs in all but the
limited circumstances recognized here. . . . It
does not extend to attorney errors in any
proceeding beyond the first occasion the State
allows a prisoner to raise a claim of
ineffective assistance at trial, even though that
initial-review collateral proceeding may be
deficient for other reasons.
In addition, the limited nature of the
qualification to Coleman adopted here reflects
the importance of the right to the effective
assistance of trial counsel and Arizona’s
decision to bar defendants from raising

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ineffective-assistance claims on direct appeal.
Our holding here addresses only the
constitutional claims presented in this case,
where the State barred the defendant from
raising the claims on direct appeal.

Id.; see also McKinney v. Ryan, No. 09-99018 at slip op. 16
(9th Cir. Sept. 16, 2013); Sexton v. Cozner, 679 F.3d 1150,
1159 (9th Cir. 2012).
Therefore, the question before us is quite uncomplicated.
The Supreme Court has told us that a person cannot raise a
claim of ineffective assistance of post-conviction relief
counsel because he is not entitled to post-conviction relief
counsel, but that is subject to an exception where trial counsel
was ineffective and the claim could not be raised earlier. The
Court made it plain that the exception extended no further.2
We recognize that the dissent in Martinez was dubious about
the limitation itself, and as much as said that the Court was
being disingenuous and that its decision “insults the reader’s
intelligence.” Martinez, __ U.S. at __, 132 S. Ct. at 1321
(Scalia, J., dissenting); see also Trevino, __ U.S. at __,
133 S. Ct. at 1924 (Scalia, J., dissenting). Well, no doubt it
is the prerogative of dissenting Justices of the Supreme Court
to be skeptical about the majority’s pronouncements
regarding the limits of its opinions, but it is not for us to treat

2

Since then the Court has added that when, in practice, state courts will
not hear claims of ineffective assistance of trial counsel on direct appeal,
the situation is the same as that when state courts expressly deny
permission to raise those claims on direct appeal. If there is a distinction,
it “is a distinction without a difference.” See Trevino v. Thaler, __ U.S.
__, __, 133 S. Ct. 1911, 1921, 185 L. Ed. 2d 1044 (2013). Nothing we
decide here is affected by that addition.

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those pronouncements as floccinaucities. We must take the
Court at its word.
Yet, it is not surprising to have enterprising lawyers seek
to cross the barriers and limitations noted by the Court. Not
surprising, but not sufficient to allow us to move those
barriers. Thus, we need not and will not consider the detail
of Hunton’s arguments, except to say that a formal deductive
logician might be troubled by an argument whose structure is:
“X” is an important right and “Y” does not apply to it; “Z” is
an important right; therefore, “Y” does not apply to “Z.” But,
even if “[t]he life of the law has not been logic,”3 and even if
Hunton has presented a plausible position, we cannot change
our decision here.
CONCLUSION
We remain bound by Coleman, which requires that we
reject Hunton’s attempt to have us remove the obstacle it
presents. If Coleman’s revetment is to be torn down, it is not
for us to do it. Rather, we must “follow the case which
directly controls, leaving to [the] Court the prerogative of
overruling its own decisions.” Rodriguez De Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct.
1917, 1921–22, 104 L. Ed. 2d 526 (1989); see also Agostini
v. Felton, 521 U.S. 203, 237–38, 117 S. Ct. 1997, 2017, 138
L. Ed. 2d 391 (1997).
AFFIRMED.

3

Oliver Wendell Holmes, Jr., The Common Law 1 (1881).

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W. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme
Court established an equitable rule under which the failure of
a pro se prisoner or of an ineffective counsel to raise in a state
court initial collateral review proceeding a claim of
ineffective assistance of counsel (“IAC”) at trial is “cause”
for the state court procedural default, such that the default
may be excused. The question in this case is whether the
Martinez rule applies to ineffectiveness of state court habeas
counsel in failing to raise a claim under Brady v. Maryland,
373 U.S. 83 (1963). I conclude that it does.
Hunton was convicted in 2002 of second degree robbery
in Washington state court and was sentenced to life in prison
without parole under that state’s three strikes law. With some
assistance from counsel, Hunton appealed to the Washington
Court of Appeals. Hunton argued on appeal that the
prosecution had violated Brady v. Maryland by delaying the
production of some evidence and failing to disclose other
evidence. The Court of Appeals refused to decide Hunton’s
Brady claim on direct appeal. It wrote:
Mr. Hunton claims that the prosecutor did not
timely provide exculpatory evidence including
information and materials regarding another
individual suspected of the robberies, as well
as other exculpatory information. Mr. Hunton
may have a point. However, the factual basis
for his claim cannot be examined on the
record before this court. See State v. Crane,

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116 Wn.2d 315, 335, 804 P.2d 10 (1991)
(review is limited to the appellate record).
The Washington Supreme Court denied review.
Acting pro se, Hunton filed a personal restraint petition
(“PRP”) in Washington court. Washington provides counsel
only in limited circumstances for prisoners filing PRPs, none
of which applied in Hunton’s case. Hunton did not raise his
Brady claim in his PRP. The Washington Court of Appeals
denied Hunton’s PRP, and the Washington Supreme Court
denied review.
Still acting pro se, Hunton then filed a petition for federal
habeas under 28 U.S.C. § 2254, in which he raised the Brady
claim he had unsuccessfully raised in his direct appeal and
had failed to raise in his PRP. The district court held that
Hunton had procedurally defaulted his Brady claim. We
granted a certificate of appealability ordering Hunton to
address the following questions: (1) whether he had
procedurally defaulted his Brady claim; (2) whether he had
exhausted his Brady claim and, if not, whether he should be
afforded an opportunity to exhaust in state court; and (3)
whether he was entitled to relief on his Brady claim. We
ordered appointment of counsel.
After briefing by counsel, we remanded to the district
court to determine whether Hunton’s federal habeas
proceeding should be stayed and held in abeyance in order to
allow him to exhaust his Brady claim. The district court
denied stay and abeyance on the ground that Hunton’s Brady
claim had already been procedurally defaulted in state court
and there would therefore be no point to a stay and abeyance
order. Unbeknownst to the district court, seven days before

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the entry of its order the Supreme Court had decided
Martinez.
Hunton moved in the district court for
reconsideration based on Martinez. The district court denied
the motion for reconsideration, but granted a certificate of
appealability.
Hunton raises a single question in this appeal: does the
equitable rule of Martinez apply to a case in which the
underlying defaulted claim is a Brady claim? For the reasons
that follow, I conclude that it does.
The Court held in Martinez that “[i]nadequate assistance
of counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim
of ineffective assistance at trial.” Martinez, 132 S. Ct. at
1315. Martinez had been convicted in Arizona, which forbids
a prisoner to raise a trial-counsel IAC claim on direct appeal.
Id. at 1313. The Court recognized that because the first
opportunity to raise a claim of trial-counsel IAC was on
collateral review, “the collateral proceeding is in many ways
the equivalent of a prisoner’s direct appeal as to the
ineffective-assistance claim.” Id. at 1317. The Court held:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review 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.
Id. at 1320.

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A year later, in Trevino v. Thaler, 133 S. Ct. 1911 (2013),
the Court reaffirmed and expanded Martinez. Trevino was a
Texas prisoner. Id. at 1915. Unlike in Arizona, there is no
statutory prohibition in Texas against a prisoner raising a
trial-counsel IAC claim. Id. However, it is “highly unlikely”
as a practical matter that appellate counsel will have a
“meaningful opportunity” to raise such a claim. Id. at 1921.
The Court wrote that Texas “appears at first glance to permit
. . . the defendant initially to raise a claim of ineffective
assistance of trial counsel on direct appeal,” but that “in
actual operation,” the “structure and design of the Texas
system . . . make it ‘virtually impossible’ for an ineffective
assistance claim to be presented on direct review.” Id. at
1915 (citation omitted). The Court therefore found “no
significant difference” between Trevino’s case and Martinez.
Id. at 1921.
The Court in Trevino summarized the four-part test
Martinez had established to determine whether a federal
habeas court may excuse a state court procedural default.
“Cause” to excuse the default may be found
where (1) the claim of “ineffective assistance
of trial counsel” was a “substantial” claim; (2)
the “cause” consisted of there being “no
counsel” or only “ineffective” counsel during
the state collateral review proceeding; (3) the
state collateral review proceeding was
the “initial” review proceeding in respect
to the “ineffective-assistance-of-trial-counsel
claim”; and (4) state law requires that an
“ineffective assistance of trial counsel [claim]
. . . be raised in an initial-review collateral

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review proceeding.” Martinez, [132 S. Ct. at
1318–19, 1320–21].

Id. at 1918. (The fourth requirement was relaxed in Trevino,
as just described.)
The Court has provided several reasons justifying its new
equitable rule excusing procedural default. First, “if
counsel’s errors in an initial-review collateral proceeding do
not establish cause to excuse the procedural default in a
federal habeas proceeding, no court will review the prisoner’s
claims.” Martinez, 132 S. Ct. at 1316. Where “the initialreview collateral proceeding is the first designated proceeding
for a prisoner to raise a claim of ineffective assistance at trial,
the collateral proceeding is in many ways the equivalent of a
prisoner’s direct appeal.” Id. at 1317.
Second, the Court recognized the importance of having
effective legal assistance in bringing an IAC claim. Id. at
1317. The Court wrote:
Claims of ineffective assistance at trial often
require investigative work and an
understanding of trial strategy. When the
issue cannot be raised on direct review,
moreover, a prisoner asserting an ineffectiveassistance-of-trial-counsel claim in an initialreview collateral proceeding cannot rely on a
court opinion or the prior work of an attorney
addressing that claim. . . .
The same would be true if the State did not
appoint an attorney to assist the prisoner in
the initial-review collateral proceeding. The

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prisoner, unlearned in the law, may not
comply with the State’s procedural rules or
may misapprehend the substantive details of
federal constitutional law. While confined to
prison, the prisoner is in no position to
develop the evidentiary basis for a claim of
ineffective assistance, which often turns on
evidence outside the trial record.
Id. at 1317 (internal citations omitted).
Finally, the Court emphasized the significance of the
underlying right to effective trial counsel. That right “is a
bedrock principle in our justice system.” Id. at 1317.
Effective counsel is essential to a fair trial, and is a
“foundation for our adversary system.” Id. Effective defense
counsel tests the prosecution’s case, thereby ensuring “that
the proceedings serve the function of adjudicating guilt or
innocence.” Id.
Each of these reasons applies with equal force to a
defaulted Brady claim. First, as in Martinez and Trevino,
where the prisoner was prevented from raising a trial-counsel
IAC claim on direct appeal, Hunton was prevented from
bringing his Brady claim on direct appeal. Almost all Brady
claims, like almost all trial-counsel IAC claims, rely on
evidence outside the trial record. Washington law prevents
evidence outside the trial record from being considered on
direct appeal. See State v. McFarland, 899 P.2d 1251, 1257
(Wash. 1995) (en banc). Hunton sought to raise his Brady
claim on direct review, and the Washington Court of Appeals
refused to hear it. It wrote, “Mr. Hunton claims that the
prosecutor did not timely provide exculpatory evidence . . .
Mr. Hunton may have a point. However, the factual basis for

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his claim cannot be examined on the record before this
court.” Recognizing the similarity of IAC and Brady claims,
the court then cited an IAC case in support of its refusal. See
State v. Crane, 804 P.2d 10, 21 (Wash. 1991) (en banc). The
Court wrote in Martinez that where “the initial-review
collateral proceeding is the first designated proceeding for a
prisoner to raise a claim of ineffective assistance at trial, the
collateral proceeding is in many ways the equivalent of a
prisoner’s direct appeal.” 132 S. Ct. at 1317. This was true
in Martinez with respect to a trial-counsel IAC claim. It is
equally true here with respect to a Brady claim.
Second, just as for a trial-counsel IAC claim, it is
important for a Brady claim that a prisoner have effective
assistance in developing evidence to support his claim. For
both trial-counsel IAC and Brady claims, much—sometimes
all—of the important evidence is outside the trial record. A
prisoner acting pro se, or with only the assistance of
ineffective collateral review counsel, cannot perform the
necessary investigative work to collect and present the
evidence in an initial-review collateral proceeding. See
Martinez, 132 S. Ct. at 1317 (describing the challenges
prisoners face in investigating claims and gathering evidence
outside the record).
Third, trial-counsel IAC claims and Brady claims
vindicate bedrock principles of our judicial system. Effective
assistance of trial counsel and production of exculpatory
evidence by the prosecution are both essential to a fair trial.
Both are critical to a criminal trial’s essential “function of
adjudicating guilt or innocence.” Martinez, 132 S. Ct. at
1317. As the Court wrote in Brady:

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Society wins not only when the guilty are
convicted but when criminal trials are fair; our
system of the administration of justice suffers
when any accused is treated unfairly. An
inscription on the walls of the Department of
Justice states the proposition candidly for the
federal domain: “The United States wins its
point whenever justice is done its citizens in
the courts.” A prosecution that withholds
evidence on demand of an accused which, if
made available, would tend to exculpate him
or reduce the penalty helps shape a trial that
bears heavily on the defendant. That casts the
prosecutor in the role of an architect of a
proceeding that does not comport with
standards of justice, even though, as in the
present case, his action is not the result of
guile, to use the words of the Court of
Appeals.
373 U.S. at 87–88 (citations and internal quotation marks
omitted). See also Amadeo v. Zant, 486 U.S. 214, 222 (1988)
(government’s intentional suppression of evidence that
prevented trial counsel from making jury challenge objection
was “cause” to excuse procedural default under Wainwright
v. Sykes, 433 U.S. 72 (1977)); Strickler v. Greene, 527 U.S.
263, 288–89 (1999) (extending Amadeo to inadvertent
suppression of evidence, citing Brady).
The Court in Martinez was careful to indicate the limited
application of the equitable rule it established. The Court
wrote:

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The holding in this case does not concern
attorney errors in other kinds of proceedings,
including appeals from initial-review
collateral proceedings, second or successive
collateral proceedings, and petitions for
discretionary review in a State’s appellate
courts. It does not extend to attorney errors in
any proceeding beyond the first occasion the
State allows a prisoner to raise a claim of
ineffective assistance at trial, even though that
initial-review collateral proceeding may be
deficient for other reasons.
In addition, the limited nature of the
qualification to Coleman [v. Thompson,
501 U.S. 722 (1991),] adopted here reflects
the importance of the right to the effective
assistance of trial counsel and Arizona’s
decision to bar defendants from raising
ineffective-assistance claims on direct appeal.
Our holding here addresses only the
constitutional claims presented in this case,
where the State barred the defendant from
raising the claims on direct appeal.

Martinez, 132 S. Ct. at 1320 (citations omitted).
According to the majority, this language precludes
applying the Martinez rule here. I disagree. Nothing in what
the Court wrote differentiates a trial-counsel IAC claim from
the Brady claim at issue here. The Court’s first paragraph
lists proceedings in which ineffective assistance of counsel
does not come within the scope of Martinez. Hunton’s Brady
claim was procedurally defaulted by counsel in his initial

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collateral review proceeding, not in any of the proceedings
listed by the Court. The second paragraph emphasizes “the
importance of the right to the effective assistance of trial
counsel,” as well as “Arizona’s decision to bar defendants
from raising ineffective-assistance claims on direct appeal.”
Id. The Court has repeatedly made clear the importance of a
Brady claim. Its language leaves no doubt that a Brady claim
is just as important as a trial-counsel IAC claim. Further,
Hunton was barred from raising his Brady claim on direct
appeal, just as Martinez and Trevino were barred from raising
their trial-counsel IAC claims on direct appeal.
Justice Scalia, dissenting in Martinez, anticipated cases
like the one now before us. He wrote that “[t]here is not a
dime’s worth of difference in principle” between trial-counsel
IAC claims and Brady claims that have been procedurally
defaulted by initial collateral review counsel. Martinez,
132 S. Ct. at 1321 (Scalia, J., dissenting). I agree.
I conclude that the equitable rule established in Martinez
applies in a case where a petitioner, acting pro se during his
initial collateral review proceedings in state court, failed to
raise and thereby procedurally defaulted his Brady claim. I
would reverse the decision of the district court and remand to
allow that court to determine whether Hunton can satisfy the
four-part test under Martinez that would allow an excuse of
his procedural default.