Hunton v. Sinclair, No. 12-35363 (Fernandez with Rawlinson; dissent by Fletcher, J)

--- The Ninth Circuit held that the exception to the procedural-default rule established in Martinez v. Ryan, 132 S. Ct. 1309 (2012), does not apply to claims under Brady v. Maryland, 373 U.S. 83 (1963), because the Supreme Court has not yet so held.

Judge Fletcher dissented. The petitioner had raised a Brady claim on direct appeal, but the state appellate court ruled that his Brady claim wasn't cognizable on direct appeal. Nor did the state courts afford him a lawyer in post-conviction proceedings. Martinez had held that in states where IAC claims must be raised in initial-review collateral proceedings, ineffective assistance in connection with that proceeding is an equitable reason to excuse procedural default because the assistance of counsel is so fundamental to the fairness of the underlying criminal trial. Judge Fletcher argued that those reasons apply with equal force to Brady claims. The majority was wrong, he argued, to read Martinez as applying only to IAC claims simply because the Court in Martinez did not have a defaulted Brady claim before it. Justice Scalia's dissent anticipated the very situation that arose here, and the majority was wrong not to take Scalia's prediction seriously.

Kudos to Spokane AFPD Matt Campbell for fighting the good fight.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/11/12-35363.pdf