Rodriguez v. Warden, C.S.A.T.F.

Filing 96

ORDER Setting Briefing Schedule Following Remand. Motion due by 2/10/2014. Response due by 3/10/2014. Reply due by 3/24/2014. Signed by Judge Phyllis J. Hamilton on 1/13/2014. (pjhlc3, COURT STAFF) (Filed on 1/13/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SALVADOR A. RODRIGUEZ,

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Petitioner,

No. C 04-2233 PJH

v.

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DERRAL ADAMS, Warden,

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ORDER SETTING BRIEFING
SCHEDULE FOLLOWING REMAND

Respondent.
___________________________________/

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Pursuant to the mandate of the Ninth Circuit Court of Appeals remanding the petition

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for writ of habeas corpus to consider (1) whether petitioner Salvador A. Rodriguez can

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demonstrate cause under Martinez v. Ryan, 132 S. Ct. 1309 (2012), in light of Detrich v.

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Ryan, 2013 WL 4712729 (9th Cir. Sept. 3, 2013) (en banc), and (2) whether Rodriguez can

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demonstrate prejudice under Coleman v. Thompson, 501 U.S. 722 (1991), the court issues

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the following briefing schedule:

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On the issue whether there is cause to excuse the procedural default of the claim of

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ineffective assistance of trial counsel for failure to investigate and present the testimony of

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Vonree Alberty and Kenneth Jackson, as asserted in the supplemental traverse to the first

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amended petition, doc. no. 44, Rodriguez shall file an opening brief on his Martinez motion

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by no later than twenty-eight days from the date of this order. Respondent’s opposition

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brief is due twenty-eight days after the opening brief is filed. Rodriguez may file a reply

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fourteen days after the opposition is filed.

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To provide guidance on the issues to be addressed in the Martinez motion, the court
directs the parties to the holding of Detrich, where the court of appeals, sitting en banc,

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read Martinez to establish four requirements to overcome procedural default, as an

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exception to the cause and prejudice requirements under Coleman:

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(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 proceeding.”

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Detrich, 2013 WL 4712729 at *5 (quoting Trevino, 133 S.Ct. at 1918). The order of

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reversal in part and remand establishes, as the law of the case, the last three of the four

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Martinez requirements: “First, Rodriguez lacked counsel during his state collateral

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proceeding. [Footnote omitted.] Second, that proceeding likely constituted an ‘initial-

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review proceeding.’ Martinez, 132 S. Ct. at 1315. Third, California’s ‘state procedural

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framework, by reason of its design and operation, makes it highly unlikely in a typical case

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that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance

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of trial counsel on direct appeal.’” Nov. 18, 2013 slip op. at 4-5. Under the terms of the

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mandate, the only issue for determination here is whether Rodriguez can establish the first

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Martinez prong and demonstrate cause to excuse the procedural default.

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Furthermore, with respect to the showing required under Martinez, the court in

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Detrich held that if a petitioner’s lack of counsel in his state collateral proceeding

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establishes cause to excuse procedural default under the requirements of Martinez, “[t]here

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is no need to show ‘prejudice’ resulting from the failure of the pro se prisoner during the

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state [post-conviction relief] proceeding to raise a claim of trial-counsel IAC, over and

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above the need to satisfy the first Martinez requirement that the underlying trial-court IAC

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claim be ‘substantial.’”

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IT IS SO ORDERED.
Dated: January 13, 2014

_________________________
PHYLLIS J. HAMILTON
United States District Judge

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