Jones v. Cate

Filing 156

ORDER setting Status Conference set for 6/12/2018 at 2:00pm. Signed by Magistrate Judge Robert N. Block on 5/31/2018.(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER JONES,

Case No.: 09-cv-01896-JM (RNB)
Petitioner,

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ORDER SETTING STATUS
CONFERENCE

v.

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MATTHEW CATE, Secretary,

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Respondent.

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Based on its initial review and consideration of petitioner’s two ineffective

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assistance of trial counsel claims in his First Amended Petition (“FAP”),1 the Court has

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concluded that the procedural default defense raised by respondent is not an obstacle to the

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Court’s consideration of those claims on the merits.

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In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that, “[w]here, under

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state law, claims of ineffective assistance of trial counsel must be raised in an initial-review

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collateral proceeding, a procedural default will not bar a federal habeas court from hearing

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Petitioner has conceded that Middleton v. McNeil, 541 U.S. 433 (2004) is dispositive
of his third ground for relief. (See ECF No. 141 (“FAP”) at 47-48.)
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a substantial claim of ineffective assistance at trial if, in the initial-review collateral

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proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 17.

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To establish “cause” to overcome procedural default under Martinez, a petitioner must

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show: (1) the underlying ineffective assistance of trial counsel claim is “substantial”; (2)

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the petitioner was not represented or had ineffective counsel during the initial state

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collateral review proceeding; (3) the state collateral review proceeding was the initial

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review proceeding with respect to the ineffective assistance of trial counsel claim; and (4)

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state law required (or forced as a practical matter) the petitioner to bring the claim in the

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initial state collateral review proceeding. See Dickens v. Ryan, 740 F.3d 1302, 1319 (9th

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Cir. 2014) (citing Trevino v. Thaler, 569 U.S. 413, 423, 429 (2013)); see also Martinez,

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566 U.S. at 13-14, 17-18.

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Here, respondent has conceded that petitioner has demonstrated prongs two through

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four and need only establish that his ineffective assistance of trial counsel claims are

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substantial in order to overcome the procedural default defense. See ECF No. 152-1 at 11

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(conceding that Petitioner falls within the Martinez exception if his ineffective assistance

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of trial counsel claims “can be deemed substantial”); see also Detrich v. Ryan, 740 F.3d

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1237, 1245 (9th Cir. 2013) (“There is no need to show ‘prejudice’ resulting from the failure

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of the pro se prisoner during the state [post-conviction relief] proceeding to raise a claim

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of trial-counsel [ineffective assistance of counsel], over and above the need to satisfy the

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first Martinez requirement that the underlying trial-court [ineffective assistance of counsel]

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claim be ‘substantial’.”); Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled

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on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015).

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A substantial claim is one that “has some merit.” Martinez, 566 U.S. at 14. The

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standard for determining whether a claim is substantial is comparable to the standard for

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issuing certificates of appealability, see id., whereby “a petitioner must show that

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reasonable jurists could debate whether . . . the petition should have been resolved in a

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different manner or that the issues presented were adequate to deserve encouragement to

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proceed further,” Miller–El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks

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and alteration omitted). See also Detrich, 740 F.3d at 1245.

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Petitioner contends that this Court already has determined that his ineffective

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assistance of trial counsel claims have some merit, referring to the Court’s prior orders.

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(See ECF No. 154 at 6-7.) Petitioner is correct. In its Report and Recommendation on

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respondent’s Motion to Dismiss the FAP, this Court determined that “based on a

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preliminary review of the ineffective assistance of counsel claims, combined with the

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evidence submitted along with the [FAP], . . . [petitioner’s ineffective assistance of

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counsel] claims are colorable and ‘potentially meritorious.’” (See ECF No. 147 at 14-15.)

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In making this determination, the Court relied on petitioner’s specific factual allegations in

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the FAP, and the evidence submitted to support his claim that he suffered from a mental or

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cognitive impairment both at the time of the crime and the time of trial, including

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declarations from family members and acquaintances, and reports from psychologists who

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evaluated petitioner and records related to his medical history. (See id. at 14.) The

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Honorable Jeffrey T. Miller adopted the Report and Recommendation in its entirety. (See

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ECF No. 148.) As this Court previously determined that petitioner’s ineffective assistance

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of trial counsel claims in the FAP are colorable and potentially meritorious, the Court finds

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that petitioner has demonstrated that his claims have some merit. See Earp v. Ornoski, 431

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F.3d 1158, 1167 n.4 (9th Cir. 2005) (“In showing a colorable claim, a petitioner is ‘required

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to allege specific facts which, if true, would entitle him to relief.’”) (citing Ortiz v. Stewart,

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149 F.3d 923, 934 (9th Cir. 1998)); Gonzalez v. Wong, 667 F.3d 965, 972 (9th Cir. 2011)

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(a claim is “potentially meritorious” where “a reasonable state court might be persuaded to

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grant relief on that claim”).

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The Court further has concluded that, in order to decide petitioner’s ineffective

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assistance of trial counsel claims on the merits,2 it is going to be necessary to conduct an

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Respondent has conceded that, because there was no state court adjudication on the
merits of petitioner’s two ineffective assistance of trial counsel claims, those claims are not
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evidentiary hearing. An evidentiary hearing is appropriate (1) if the merits of a factual

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matter were not resolved in a state hearing, Townsend v. Sain, 372 U.S. 293, 313 (1999),

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and (2) the petitioner’s allegations, if proved, would entitle him to relief. Insyxiengmay v.

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Morgan, 403 F.3d 657, 670 (9th Cir. 2005); see also Detrich, 740 F.3d at 1247 (“[W]ith

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respect to the underlying trial-counsel [ineffective assistance of counsel] ‘claim,’ given that

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the reason for the hearing is the alleged ineffectiveness of both trial and [post-conviction

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relief] counsel, it makes little sense to apply § 2254(e)(2).”).

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Here, the Court notes that the merits of petitioner’s claims were not resolved in a

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state hearing. Nor does the primary factual basis for petitioner’s claims already exist in the

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record. The factual basis consists primarily of the declaration of a medical expert that was

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not presented at trial. (See ECF No. 152-1 at 27.) In addition, as noted above, this Court

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has already determined that petitioner has colorable ineffective assistance of trial counsel

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claims, which, if proved, would entitle him to relief. Accordingly, an evidentiary hearing

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is appropriate here.

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In his FAP, petitioner requests an evidentiary hearing, claiming that he can support

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his allegations on his ineffective assistance of trial counsel claims with evidence at an

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evidentiary hearing. (FAP at 9, 52.) Respondent does not dispute that the Court should

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conduct an evidentiary hearing on petitioner’s ineffective assistance of trial counsel claims,

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if it determines that petitioner has stated a prima facie claim for relief (which the Court

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has). (See ECF No. 152-1 at 12, 27-28.) Therefore, in light of the foregoing, the Court

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hereby ORDERS as follows:

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governed by the AEDPA standard of review. (See ECF No. 152 at 2; ECF No. 152-1 at
11, 27.) Rather, the governing standard of review for those claims is de novo. See Nulph
v. Cook, 333 F.3d 1052, 1056-57 (9th Cir. 2003) (holding that “AEDPA’s deferential
standard” does not apply “[b]ecause the state court did not issue a decision on the merits”);
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (“[W]hen it is clear that a state court
has not reached the merits of a properly raised issue, we must review it de novo.”), cert.
denied, 539 U.S. 916 (2003).

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1.

A Status Conference shall be held on June 12, 2018 at 2:00 p.m. in the

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chambers of the Honorable Robert N. Block, United States Magistrate Judge,

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U.S. Courthouse, 333 West Broadway, Suite 1080, San Diego, California,

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92101. Counsel for both parties shall appear in person.

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2.

At the Status Conference, counsel shall be prepared to discuss the following:

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(a) the parties’ interest (if any) in exploring the possibility of reaching a

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stipulation disposition, considering the amount of custodial time petitioner

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already has served; and (b) if the matter cannot be resolved, the timing of the

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evidentiary hearing and related deadlines (e.g., for expert designations,

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exchange of expert reports, and expert and non-expert depositions; and the

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filing of witness lists, exhibit lists, and pre-hearing briefs).

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Dated: May 31, 2018
_________________________
ROBERT N. BLOCK
United States Magistrate Judge

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