Habeas Corpus Blog

Habeas Corpus - Martinez vs. Pinholster - Who wins?

By JK

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In an unpublished order, the three-judge panel in Schad remanded the case to the district court for that court to determine whether petitioner could rely upon Martinez to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.

Habeas Corpus - Ninth Circuit Stays the Course

By JK

Soon after my move out here to the Ninth Circuit, I talked about a way that the Ninth Circuit has used to get around Pinholster.  Essentially, the Ninth Circuit will conclude that the highly deferential standard of review does not apply, and the court can conduct a de novo review and hear new evidence, where the state court's fact-finding was unreasonable. And one way in which a state court’s fact finding can be unreasonable is where the state court’s factual finding process was deficient.  More specifically, the Ninth Circuit has “held that the state court’s failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).” 

It's a lovely and creative way around the most problematic part of Pinholster.  But one problem with my prior post was that I did rely, in part, on a decision that subsequently went en banc, Detrich v. Ryan.  It means that the original panel decision is not binding law.  And that en banc rehearing remains sub judice.  The entire decision may end up getting completely vacated by the en banc court.

So I was pleased when the Ninth Circuit decided Hurles v. Ryan.*  In Hurles, the Ninth Circuit remanded a capital case for an evidentiary hearing on a judicial bias claim.  But to get there, the court had to find that the state court's fact finding process was deficient. Here's what the court said: "We have held repeatedly that where a state court makes factual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, the fact-finding process itself is deficient and not entitled to deference."  

* There seems to be a little bit of a convoluted history as to how this opinion got issued.  According to the summary, "The panel withdrew its opinion filed July 7, 2011, andpublished at 650 F.3d 1301 (9th Cir. 2011), filed a replacement opinion, denied a petition for rehearing and rehearing en banc as moot but allowed the parties to file a petition for rehearing and rehearing en banc with respect to the replacement opinion."  The instant opinion seems to be the one that was entered after rehearing.

Okay, it is not stated as clearly as it was in Detrich.*  But it really is the same principle: the federal courts can hear new evidence and/or hold an evidentiary hearing when the state fact-finding process was deficient.  And that includes when no evidentiary hearing was held in state court.  

* There they said that where the process was unreasonable, "we proceed to evaluate the petitioner’s claim de novo and may then consider evidence that was properly presented for the first time in federal court."

But I will point out that, I don't think it is just in the situations where a hearing was not held in state court (as the court stated in Hurles).  It must be where it was unreasonable for the state court not to have held a hearing.  In the court's defense, it's discussion in Hurles made clear that the state court was acting unreasonably throughout the fact-finding process.

Thus, the Ninth Circuit continues to offer this unreasonable-fact-finding-process as a way around Pinholster where the state court refuses to hold a hearing.  Let's hope that the en banc court in Detrich doesn't take it away.