By JK
It is my policy to not discuss any of my cases on this blog. I also try not to discuss any cases in which the petitioner is being represented by someone in my office.
But I want to briefly violate that policy and mention the Ninth Circuit’s decision from last week in Blake v. Baker.* In the first case ever to address this issue, the Ninth Circuit concluded that ineffective assistance of post-conviction counsel, i.e. a Martinez argument, can establish good cause to justify a Rhines stay and abeyance to allow a petitioner to present an unexhausted claim to state court.
* To note, I did not work on this case at all. The petitioner is represented by members of the Capital Habeas Unit in my office. I am in the Non-Capital Unit.
Rather than talk about the specifics of Blake, I’ll just briefly mention what this means generally.* A petitioner files a petition with both exhausted and unexhausted claims. This is what’s known as a mixed petition. A federal court is required to dismiss a mixed petition without prejudice. Unfortunately, if the petition gets dismissed, even without prejudice, then the case is over. It is much more likely than not that any attempt by petitioner to resuscitate the petition in federal court after exhausting the unexhausted claims in state court will be outside the one-year statute of limitations. This leaves the petitioner with few choices. He can either dismiss the unexhausted claims and solely proceed on the exhausted ones. Or he can move for a stay and abeyance, known as a Rhines stay (because it was created in a case called Rhines v. Weber). To obtain a stay, a petitioner must show, among other things, good cause for failing to exhaust the claim previously.
* Actually, I have talked about all of this before. And in more detail. But it can't hurt to cover it again.
Blake now establishes that a Martinez argument can establish good cause to justify a stay. Great decision for habeas petitioners.
But there is a likely reason why the decision in Blake is the first of its kind. A stay typically isn’t necessary for a Martinez argument. Rather, the typical situation is more like that in Dickens v. Ryan. A petitioner raises an unexhausted ineffective assistance of trial counsel claim. There is absolutely no doubt that the state court would find the claim procedurally defaulted because it was not raised previously. Thus, a return to state court is futile. In such a situation, the unexhausted claim is “technically” exhausted. A technically exhausted claim does not get addressed on the merits in federal court. Rather, the claim is considered procedurally defaulted. In other words, the federal courts just acknowledge an “anticipatory” default on that claim. Because the claim is procedurally defaulted, the petitioner is required to show cause and prejudice to overcome the default. At that point, the petitioner raises the Martinez argument. In most situations, the federal court will just jump to this step, rather than force the petitioner to go back to state court to obtain the inevitable procedural default first. That’s what happened in Dickens.
But that’s not what happens here in Nevada. The district court here makes the petitioner go back to state court to get the procedural default. The court’s justification for this is that Nevada “allows” second or successive habeas petitions if the petitioner can show “good cause” and prejudice. So essentially, the district courts here believe that because Nevada has a similar cause/prejudice structure, the petitioner should be required to first present that cause and prejudice to the state court before it gets presented to the federal court. If there is cause and prejudice, the state court will get the chance to address the merits of the claim in the first instance.
Personally, I disagree with this. I don’t think it’s consistent with Supreme Court authority on the issue (such as Harris v. Reed, or at least O’Connor’s concurring opinion in Harris). But it’s an interesting debate that I am going to have to face repeatedly in my cases.
Nevertheless, Nevada is most likely not the only State with unusual post-conviction rules. For those States where the federal courts do believe that a return to state court is necessary, then Blake will provide tremendous assistance to those petitioners.
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