Tuesday, September 03, 2013

Detrich v. Ryan, No. 08-99001 (9-3-13)(en banc)(W. Fletcher and plurality with Pregerson, Reinhardt and Christen; concurrence by Nguyen; concurrence by Watford; dissent by Graber joined by Kozinski, Gould, Bea, and Murguia).

This is an important Martinez case. The 9th wrestles, and splinters somewhat, with a Martinez remand for IAC of state pcr counsel. The majority opinion remands to determine whether the state pcr counsel in this capital petition was ineffective. The plurality explained the Martinez four prongs to overcome procedural default and finding cause and prejudice: the IAC claim had to be substantial; (2) the "cause" being either no counsel or ineffective counsel during state review;(3) that the state pcr was the only proceeding to examine IAC of trial counsel (not a hybrid approach); and (4) state law requires the claims to be raised in an initial review collateral proceeding. The explanation provides a framework of analysis for procedural default under Martinez and distinguishes it from the prejudice and cause analysis in Strickland. Nguyen concurs but believes that the standards for cause and prejudice remain the same under Martinez and Strickland. Watford just wanted the case to be remanded and need not say more. Graber with others would forego a remand, under the facts, and decide the sentencing IAC claims now.


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