Tellez-Vasquez v. Smith

Filing 62

MEMORANDUM DECISION AND ORDER denying 51 Motion to Appoint Counsel ; denying 52 Motion Allowing Petitioner to Proceed; granting 53 Motion for Extension of Time to File Response/Reply ; denying 58 Motion for a Telephonic Hearing. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MIGUEL TELLEZ-VASQUEZ,
Case No. 1:10-cv-0406-CWD
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.

JOHANNA SMITH, Warden,
Respondent.

On September 17, 2012, the Court conditionally granted Respondent’s Motion for
Summary Dismissal. (Dkt. 36, 50.) The Court concluded that Petitioner’s claim of
ineffective assistance of counsel on direct appeal (Claim 1) was procedurally defaulted,
and that Petitioner had not shown that the exceptions of cause and prejudice or a
fundamental miscarriage of justice applied to excuse the default. (Dkt. 50.) Remaining in
this action are the parties’ arguments regarding whether Martinez v. Ryan, 132 S.Ct. 1309
(2012), applies to excuse the procedural default of Petitioner’s claim of ineffective
assistance of appellate counsel. Several other motions are also pending. (Dkt. 51, 53, 58.)
Having reviewed the record in this matter, including the parties’ supplemental
briefing (Dkt. 52, 56), the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

PRELIMINARY MOTIONS
Petitioner has again filed a Motion for Appointment of Counsel. (Dkt. 51.)
Petitioner has set forth nothing in the Motion that the Court has not already considered in
denying the past motions. (Dkt. 46.) Despite having a language issue, Petitioner has been
able to use inmate translators and jailhouse lawyers to prepare his pleadings and papers,
resulting in the submission of understandable typewritten or handwritten pleadings and
papers in English in this case. For example, Petitioner’s Martinez motion is typewritten
and 32 pages in length. Petitioner has not alleged that no translation services were
available to him; for example, if an inmate translator was unavailable and the prison
refused to provide a translator in the absence of an inmate translator, Petitioner may have
grounds to request that the Court require the prison to provide a translator as part of its
access to courts system.1
Rather than there being an issue of a language barrier, the issue in Petitioner’s case
seems to be the fact that Petitioner, like most other inmates, has no legal training, which is
not enough to warrant appointment of counsel. As noted in its earlier Orders, the law does
not require that lawyers be appointed in habeas corpus cases except in extraordinary
cases, or where an evidentiary hearing is required.

1

Cf. Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) (For equitable tolling grounds, “we
conclude that a non-English-speaking petitioner seeking equitable tolling must, at a minimum,
demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts,
to procure either legal materials in his own language or translation assistance from an inmate, library
personnel, or other source. We agree with Cobas that a petitioner who demonstrates proficiency in
English or who has the assistance of a translator would be barred from equitable relief.”).
MEMORANDUM DECISION AND ORDER - 2

The Martinez issue in this case is not complex. Petitioner has been provided with
the standard of law for Martinez, and can make his arguments based on the principles
provided to him. Further, in the Court’s own research, it has found nothing remotely
supporting an argument that Martinez encompasses an ineffective assistance of direct
appeal counsel claim. Therefore, appointment of counsel is unnecessary because the
argument is without merit. Accordingly, Plaintiff’s renewed motion will be denied.
Petitioner’s Motion for Telephonic Hearing (Dkt. 58) will be denied, as the Court
has determined that oral argument is unnecessary to determining the issues at hand.
Respondent’s Motion for Extension of Time to File a Response re: Martinez v.
Ryan (Dkt. 53) will be granted. The Response filed on December 4, 2012 will be
considered timely filed. (Dkt. 56.)
MARTINEZ V. RYAN BRIEFING
1.

Background
In 2004, after a jury trial in state court, Petitioner was convicted of two counts of

trafficking a controlled substance (methamphetamine), one count of delivery of a
controlled substance (methamphetamine), and three counts of failure to obtain a tax
stamp. (State’s Lodging A-1, pp. 103-07.) Petitioner’s sentences for all six counts were
ordered to be served concurrently, resulting in a term of 5 to 25 years in prison. (State’s
Lodging A-1, pp. 117-26.) On direct appeal, Petitioner’s appellate counsel raised a single
claim challenging Petitioner’s sentences. The Idaho Court of Appeals affirmed the
sentences. (State’s Lodging B-1.) The Idaho Supreme Court denied Petitioner’s petition
MEMORANDUM DECISION AND ORDER - 3

for review. (State’s Lodging B-7.)
Petitioner next filed an application for post-conviction relief in state district court,
raising a number of claims, including claims of ineffective assistance of trial counsel.
(State’s Lodging C-1, pp. 29.) The district court dismissed the application, but Petitioner
apparently did not receive notice of the court’s order for several months, and his appeal
was later dismissed as untimely. (State’s Lodging E-1, pp. 18-19.) However, an
agreement was reached by the parties that resulted in the state district court re-filing the
order dismissing the application so that Petitioner could submit a timely notice of appeal
from the order. (State’s Lodging E-1, p. 12-15.) On appeal, the Idaho Court of Appeals
affirmed the lower court’s decision, and Petitioner’s petition for review was denied by the
Idaho Supreme Court. (State’s Lodgings F-8, F-9.)
All of Petitioner’s claims have been dismissed except Claim 1, that Petitioner’s
counsel on direct appeal was ineffective for failing to assert certain issues in that
proceeding. Petitioner raised claims of ineffective assistance of trial and sentencing
counsel in the state court post-conviction action, but he did not assert that his counsel was
ineffective during the direct appeal, which is the claim that he has chosen to raise here
(Claim 1). As a result, the claim is procedurally defaulted. The Court asked the parties to
address in their briefing whether Martinez is limited to excusing the default of ineffective
assistance of trial counsel claims or whether its reasoning also applies to defaulted claims
of ineffective assistance of counsel on the direct appeal.

MEMORANDUM DECISION AND ORDER - 4

2.

Standard of Law
A petitioner does not have a federal constitutional right to effective assistance of

counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551
(1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule
is that any errors of his counsel during the post-conviction action cannot serve as a basis
for cause to excuse Petitioner’s procedural default of his claims. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991).
The holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012), established a “limited
qualification” to the Coleman rule. Id. at 1319. In Martinez, the court held that inadequate
assistance of counsel “at initial-review collateral review proceedings may establish cause
for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 1315.
“To overcome the default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Id. at 1318.
The Martinez Court explained that the limited exception was created “as an
equitable matter, that the initial-review collateral proceeding, if undertaken without
counsel or with ineffective counsel, may not have been sufficient to ensure that proper
consideration was given to a substantial claim.” Id. at 1318.
In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Supreme Court determined that,
where “a State’s procedural framework, by reason of its design and operation, makes it
highly unlikely in a typical case that a defendant will have a meaningful opportunity to
MEMORANDUM DECISION AND ORDER - 5

raise an ineffective-assistance-of-trial-counsel claim on direct appeal,” the exception
recognized in Martinez applies, meaning that a petitioner may assert that his postconviction counsel was ineffective for failing to raise an ineffective assistance of trial
counsel claim in that proceeding, because it was the first meaningful opportunity to raise
such a claim. 133 S.Ct. at 1921. In Idaho, the post-conviction setting is the “preferred
forum for bringing claims of ineffective assistance of counsel,” although in limited
instances such claims may be brought on direct appeal “on purported errors that arose
during the trial, as shown on the record”( as opposed to matters arising outside the
record). Matthews v. State, 839 P.2d 1215, 1220 (Idaho 1992). Thus, in Idaho, Martinez
can be applied to ineffective assistance of trial counsel claims arising from Idaho state
court convictions and sentences, where the post-conviction setting was the first forum in
which the ineffective assistance of trial counsel claim based on matters arising outside the
record could have been brought and developed in an evidentiary hearing. See Matthews,
839 P.2d at 1120.
The Martinez Court explained that its holding was based on “equitable” rather than
“constitutional” grounds, and emphasized that it was not to be applied generally to
procedural default circumstances:
The rule of Coleman governs in all but the limited circumstances
recognized here. 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
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though that initial-review collateral proceeding may be deficient for other
reasons.
132 S.Ct. at 1320 (citations omitted).2
The Ninth Circuit has summarized the Martinez test as follows: “a reviewing court
must determine whether the petitioner’s attorney in the first collateral proceeding was
ineffective under Strickland,3 whether the petitioner’s claim of ineffective assistance of
trial counsel is substantial, and whether there is prejudice.” Sexton v. Cozner, 679 F.3d
1150, 1159 (9th Cir. 2012) (footnote added). Under Strickland, a petitioner must show
that his post-conviction counsel’s performance was both unreasonably deficient and that
the defense was actually prejudiced as a result of counsel’s errors. Strickland, 466 U.S. at
684. In Sexton, the court reiterated: “Counsel is not necessarily ineffective for failing to
raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing
to raise a claim that is meritless.” 679 F.3d at 1157 (citing Knowles v. Mirzayance, 556
U.S. 111, 127 (2009)).
Under Strickland, there is a strong presumption that an attorney performed within
the wide range of professional competence, and the attorney’s performance will be
deemed deficient only if it fell below an objective standard of reasonableness measured
under prevailing professional norms. Strickland, 466 U.S. at 689, 694. To prove

2

The Martinez Court also reiterated that § 2254(i) specifically provides that “incompetence of
counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in
proceedings arising under section 2254,” id. at 1320.
3

Strickland v. Washington, 466 U.S. 668 (1984).

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prejudice, the petitioner must demonstrate that there is a reasonable probability that, but
for counsel's unreasonable errors, the result of the proceeding would have been different.
Id. at 694. “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Id. at 689. As a result, “[t]he question is whether an attorney’s representation
amounted to incompetence under prevailing professional norms, not whether it deviated
from best practices or most common custom.” Harrington v. Richter, 131 S.Ct. 770, 778
(2011) (internal quotations and citation omitted).
The application of the Strickland test in this instance means that Petitioner is
required to show that counsel’s representation during the post-conviction proceeding was
objectively unreasonable, and that, but for his errors, there is a reasonable probability that
Petitioner would have received relief on a claim of ineffective assistance of trial counsel
in the state post-conviction matter.
This standard is a high one. Stated another way, to overcome procedural default
under Martinez, the petitioner must show that “[post-conviction relief] counsel’s failure to
raise the claim that trial counsel was ineffective was an error “so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and
caused [the petitioner] prejudice.” Sexton, 679 F.3d at 1157 (citing Strickland, 466 U.S. at
687).

MEMORANDUM DECISION AND ORDER - 8

3.

Discussion
After Martinez was issued, neither the United States Supreme Court nor the United

States Court of Appeals for the Ninth Circuit has extended Martinez to ineffective
assistance of direct appeal counsel claims. The Court did not find, in its independent
research, any instances of federal district courts applying Martinez to claims of
ineffective assistance of direct appeal counsel. In Martinez, the Supreme Court
emphasized the “limited” nature of the exception, and that the new exception “reflects the
importance of the right to the effective assistance of trial counsel.” 132 S.Ct. at 1320
(emphasis added).
Respondent also persuasively argues that, in Evitts v. Lucey, 469 U.S. 387 (1985),
the Supreme Court noted that there is no constitutional right to appeal a state criminal
conviction for alleged trial errors, but if the State makes an appeal available, it must
comport with due process and equal protection. Id. at 393 (internal citation omitted). This
general principle supports the distinction made in Martinez between trial counsel claims
and direct appeal claims.
That Trevino v. Thaler, supra, widened the scope of the exception in a different
manner–to include counsel who fail to raise ineffective assistance of trial counsel claims
either on direct appeal or on post-conviction review if that is the first forum in which the
claim can be heard in a meaningful manner–does not support an argument that the scope
of the underlying claims within the exception also has been broadened. In Trevino, there
was no hint that the exception should be broadened to include any claims other than
MEMORANDUM DECISION AND ORDER - 9

ineffective assistance of trial counsel.
For all of the foregoing reasons, the Court concludes that Martinez does not apply
to excuse the procedural default of Petitioner’s ineffective assistance of direct appeal
counsel claims. Accordingly, the Court will grant Respondent’s Motion for Summary
Dismissal in full, and dismiss this case with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Summary Dismissal (Dkt. 36) is GRANTED.

2.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DISMISSED with
prejudice.

3.

Petitioner’s Motion for Appointment of Counsel (Dkt. 51) is DENIED.

4.

Respondent’s Motion for Extension of Time (Dkt. 53) is GRANTED. The
Response at Docket No. 56 is considered timely filed.

5.

Petitioner’s Motion for a Telephonic Hearing (Dkt. 58) is DENIED.

6.

Petitioner’s Motion Allowing Petitioner to Proceed Under Martinez v. Ryan
(Dk. 52) is DENIED.

7.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner
files a timely notice of appeal, the Clerk of Court shall forward a copy of
the notice of appeal, together with this Order, to the United States Court of

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Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.
DATED: August 7, 2013

Honorable Candy W. Dale
United States Magistrate Judge

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