Has the Ninth Circuit found another way around Pinholster? Can a petitioner rely upon a Martinez argument in order to have a federal court review "new" evidence? Boy, these pathways around Pinholster really are a hot topic in these parts.
On Monday March 4, Judge Tallman, joined by many, if not all, of the other conservative judges on the Ninth Circuit, issued a published order dissenting from the denial of rehearing en banc in a capital habeas case called Schad v. Ryan.
In an unpublished order, the three-judge panel in Schad remanded the case to the district court for that court to determine whether petitioner could rely upon Martinez to establish cause for a procedurally defaulted IAC claim. Petitioner had raised an IAC claim based on counsel's failure to present mitigating evidence during the penalty phase. In his habeas petition, petitioner was relying upon mitigating evidence that post-conviction counsel ("PCC") failed to present to the state courts. While PCC had raised an IAC claim based on a failure to present mitigating evidence during the penalty phase, PCC had not presented this particular mitigating evidence to the state courts.* This failure was the basis of the Martinez argument.
* Specifically, in state court, the claim focused on counsel's failure to investigate and present additional evidence regarding his tragic history of child abuse. The new mitigating evidence in federal court was evidence of his mental illness as an adult.
This made these conservative judges angry. In their mind, petitioner was using an improper way around Pinholster to have the federal court consider new evidence not presented to the state courts. To them, this was not a "new" IAC claim. In their eyes, petitioner was simply making the old claim prettier with fancy new evidence and then improperly arguing that Martinez allowed the federal court to consider that better-looking new evidence under a new IAC claim.
I find the dissenting judges' analysis a little hard to accept. In my mind, these judges are simply unhappy with the logical consequences of Martinez. I really don't think that there can be much of a debate that what the three-judge panel allowed here is fully consistent with Martinez -- petitioner was arguing cause based on post-conviction counsel's "errors" for failing to "properly present" an IAC claim. Those are words quoted out of the first paragraph of Martinez.
So Martinez has the upper hand in this round. But the scorecard could change considerably after the en banc argument in Dickens. Actually, reviewing the Schad unpublished order, it also appears that a Martinez argument is going to be addressed in the Detrich en banc as well. Looks like there are going to be many battles up ahead over the reach of Martinez.