Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Senior District Judge, Presiding D.C. No. 2:98-cv-00072-SMM
The opinion of the court was delivered by: McKEOWN, Circuit Judge:
Argued and Submitted May 14, 2012 San Francisco, California
Before: GRABER, McKEOWN, and CALLAHAN, Circuit Judges.
This is the second time that Samuel Lopez seeks review in this court with respect to his petition for habeas relief in federal court. The facts and procedural history are laid out in detail in our previous decision. Lopez v. Ryan, 630 F.3d 1198 (9th Cir.), cert. denied, 132 S. Ct. 577 (2011). Since we last considered Lopez's habeas appeal, there have been several developments: (1) the Supreme Court issued its opinion in Martinez v. Ryan, 132 S. Ct. 1309 (2012), which changed the landscape with respect to whether ineffectiveness of post-conviction counsel may establish cause for procedural default; (2) Arizona issued a death warrant and set May 16, 2012, as the date for Lopez's execution; and (3) the district court denied Lopez's Federal Rule of Civil Procedure 60(b) motion seeking relief under Martinez. Lopez v. Ryan, No. CV--98--72--PHX--SMM, 2012 WL 1520172 (D. Ariz. Apr. 30, 2012) (order).
Lopez brings claims within claims and allegations of ineffective counsel at various levels of the proceedings. He asserts that his trial counsel at sentencing was ineffective and now, for the first time, that his post-conviction relief ("PCR") counsel also was ineffective in his presentation of that claim. In Lopez's view, Martinez requires us to excuse his procedural default because of ineffective assistance of counsel ("IAC") in his state PCR proceeding and to stay his execution.
We conclude that the district court did not abuse its discretion in denying the Rule 60(b) motion. Further, Martinez requires Lopez to show that the defaulted claim is a substantial one. Because Lopez has not done so, we conclude, in the alternative, that he fails to meet the necessary threshold under Martinez. To understand our decision, it is important to outline Martinez, to clarify the scope of Lopez's claims in federal court, and to benchmark Lopez's claim against the evidence.
Martinez forges a new path for habeas counsel to use ineffectiveness of state PCR counsel as a way to overcome procedural default in federal habeas proceedings. In Martinez, an Arizona prisoner, whose PCR counsel did not raise any IAC claim in the first collateral proceeding, argued that his PCR counsel's ineffectiveness caused his procedural default as to the sentencing level IAC claim. The Court considered "whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding." Martinez, 132 S. Ct. at 1315. Such an approach had been presumed barred by Coleman v. Thompson, 501 U.S. 722 (1991), which held that a PCR lawyer's negligence does not qualify as cause, because the lawyer is the prisoner's agent. Martinez explicitly limits the Coleman rule "by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." 132 S. Ct. at 1315.
Justice Kennedy, writing for the Court, explained that PCR counsel's failure to raise an IAC claim at all constituted cause for procedural default. Id. at 1314. The opinion laid out procedure for overcoming a default:
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. . . . The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ...