Ricky Jovan Gray v. Eddie L. Pearson , 526 F. App'x 331 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5
RICKY JOVAN GRAY,
Petitioner - Appellant,
v.
EDDIE L. PEARSON, Warden, Sussex I State Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony John Trenga,
District Judge. (1:11-cv-00630-AJT-TCB)
Argued: May 15, 2013 Decided: June 7, 2013
Before DAVIS, WYNN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished order. Judge Davis directed
entry of the order with the concurrence of Judge Wynn and Judge
Diaz.
ARGUED: Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Charlottesville, Virginia, for Appellant.
Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF:
Johnathan P. Sheldon, SHELDON & FLOOD, PLC, Fairfax, Virginia,
for Appellant. Kenneth T. Cuccinelli, II, Attorney General,
Richmond, Virginia, for Appellee.
___________________
O R D E R
___________________
Petitioner Ricky Gray was convicted of capital murder in
the commission of a robbery or attempted robbery, capital murder
of more than one person as part of the same transaction, capital
murder of more than one person, and two counts of capital murder
of a person under the age of fourteen by a person age twenty-one
or older. The jury found the aggravating factor of vileness and
sentenced Gray to death on the two counts of capital murder of a
person under the age of fourteen by a person twenty-one or
older, and life imprisonment on the remaining capital
convictions.
On June 8, 2007, the Virginia Supreme Court affirmed Gray’s
convictions and sentence. Gray v. Commonwealth of Virginia, 645
S.E.2d 448 (Va. 2007), cert. denied, 552 U.S. 1151 (2008). On
March 14, 2008, Gray filed a timely Petition for Writ of Habeas
Corpus in the Virginia Supreme Court, asserting ten distinct
claims of ineffective assistance of his trial counsel. Gray was
appointed counsel to represent him in the state collateral
proceedings. Ultimately, the Virginia Supreme Court granted in
part (vacating one of the life sentences) and dismissed in part
Gray’s Petition. Gray then sought federal habeas relief pursuant
to 28 U.S.C. § 2254 in the Eastern District of Virginia. The
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district court appointed the same attorneys who had represented
Gray in the state habeas proceedings to represent him in his
federal habeas proceedings.
The district court denied all relief, and Gray filed an
appeal of that decision on August 29, 2012. The district court
issued a certificate of appealability on the two claims
currently before this Court: (1) whether the resolution of
disputed issues of fact by the Supreme Court of Virginia, based
on conflicting sworn declarations without an evidentiary hearing
or an opportunity to create a record through discovery, resulted
in a decision that was based on an unreasonable determination of
fact under 28 U.S.C. 2254(d)(2); and (2) whether Gray is
entitled to the appointment of independent counsel under the
holding of the United States Supreme Court in Martinez v. Ryan,
132 S. Ct. 1309 (2012), which was handed down during the
pendency of Gray’s federal habeas proceedings. For the reasons
set forth below, we conclude that Gray was entitled to the
appointment of independent counsel in his federal habeas
proceeding. Accordingly, we vacate the judgment and remand for
further proceedings, deferring consideration of his first claim.
Gray’s current counsel in these federal habeas proceedings
served as his counsel in state habeas proceedings, as well. He
argues before us, as he argued before the district court, that
under the reasoning and holding of Martinez, he is entitled to
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counsel who could vigorously examine and present if available
potential claims of ineffective assistance by those very counsel
in his state habeas proceedings. We agree that this is a correct
reading of Martinez.
It is well settled that a federal habeas court is generally
unable to review a federal constitutional claim that was
“procedurally defaulted” due to the defendant’s failure to raise
the claim in accordance with state law requirements. Richmond v.
Polk, 375 F.3d 309, 322 (4th Cir. 2004); Monroe v. Angelone, 323
F.3d 286, 297 n.16 (4th Cir. 2003). This is so because the
judgment in such a case is based on an “independent and adequate
state ground” with which federal habeas courts will not
interfere. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
However, a procedurally defaulted claim can be reviewed by a
federal habeas court if the prisoner can establish “cause” for
the default, and “prejudice” from a violation of federal law.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
The Supreme Court had previously held in Coleman that
because a habeas petitioner has no constitutional right to
counsel in state post-conviction proceedings, the
ineffectiveness of post-conviction counsel cannot establish
“cause” to excuse a procedural default. Coleman, 501 U.S. at
757. The Court established an exception to that rule in
Martinez.
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In Martinez, the Supreme Court considered “whether a
federal habeas court may excuse a procedural default of an
ineffective-assistance claim when the claim was not properly
presented in state court due to an attorney’s errors in an
initial-review collateral proceeding.” Martinez, 132 S. Ct. at
1313. The Court coined the term “initial-review collateral
proceeding” to describe the situation where a state makes the
state collateral proceedings the first instance in which a
prisoner can bring an ineffective assistance of trial counsel
challenge. Id. at 1315. In states that have such a requirement,
the initial-review collateral proceeding is a “prisoner’s ‘one
and only appeal’ as to an ineffective-assistance claim . . . .”
Id. (quoting Coleman, 501 U.S. at 756). This reality led the
Martinez Court to hold that
[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 . .
. 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).
Martinez, 132 S. Ct. at 1318. In order to overcome the default,
the Martinez Court went on to hold, the “prisoner must also
demonstrate that the underlying ineffective-assistance-of-trial-
counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Id.5
Thus, the Court established an exception to Coleman, and
concluded that federal habeas courts can find “cause” to excuse
a procedural default where
(1) the claim of ‘ineffective assistance of trial
counsel’ was a ‘substantial’ claim; (2) the ‘cause’
consisted of there being ‘no counsel’ or only
‘ineffective’ counsel during the state collateral
review proceeding; (3) the state collateral review
proceeding was the ‘initial’ review proceeding in
respect to the ‘ineffective-assistance-of-trial-
counsel claim’; and (4) state law requires that an
‘ineffective assistance of trial counsel [claim] . . .
be raised in an initial-review collateral proceeding.’
Trevino v. Thaler, No. 11–10189, 2013 WL 2300805(May 28, 2013)
(slip. op., at 8) (quoting Martinez, 132 S. Ct. at 1318).*
Virginia requires prisoners to bring ineffective-
assistance-of-trial-counsel claims, for the first time, in state
collateral proceedings. Johnson v. Commonwealth, 529 S.E.2d 769,
781 (Va. 2000). Because of this, Gray contends that Martinez is
applicable to his case, and that his unique circumstance
requires the appointment of new counsel to enable him to fully
investigate any available Martinez claims.
*
In Trevino, the Supreme Court elaborated on and expanded
the Martinez exception, explaining that it is applicable not
only in circumstances where a state requires a defendant to
initially raise an ineffective-assistance-of-trial-counsel claim
in a state collateral proceeding, but also when a state, as the
Court found was the case in Texas, maintains a procedural regime
that amounts to such a requirement, i.e., when it is “virtually
impossible” for an ineffective assistance claim to be raised on
direct review. Trevino, slip op., at 2.
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Here, Gray argues, in essence, that because he has been
represented by the same counsel in both state and federal post-
conviction proceedings, he is unable to identify any potential
Martinez claims and to rely thereon to assert “cause” to excuse
any such otherwise procedurally defaulted claims because in
order to do so his current counsel would be required to argue
their own ineffectiveness in their representation of him in
state post-conviction proceedings. Gray maintains that such a
task would create a conflict of interest that contravenes his
counsels’ professional ethical duties and thereby corrode their
duty of vigorous representation.
The Warden contends, unpersuasively, that no such conflict
of interest exists. He argues that “[f]ederal habeas counsel’s
duties are no different now than before Martinez was decided. If
there was a defaulted Strickland claim existing before Martinez
that counsel deemed meritorious enough to present, counsel
presented it. That has not changed. There is no requirement, and
no need, to appoint additional counsel.” Appellee’s Br. 37. The
Warden also points to the fact that Gray’s present counsel have
failed to identify any potential procedurally defaulted claims,
otherwise barred but for Martinez, as evidence that no
substantial claim can be made. We do not agree with the Warden’s
arguments.
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We find that a clear conflict of interest exists in
requiring Gray’s counsel to identify and investigate potential
errors that they themselves may have made in failing to uncover
ineffectiveness of trial counsel while they represented Gray in
his state post-conviction proceedings; the conflict is anything
but “theoretical.” J.A. 1634. Indeed, the Virginia State Bar
Ethics Counsel advised Gray’s counsel that they are ethically
barred from investigating their own ineffectiveness. J.A. 1695.
This opinion, in addition to two affidavits of legal ethics
experts who agreed that Gray’s counsel are ethically barred from
representing Gray on his Martinez claims, were presented to the
district court. The district court nonetheless denied Gray’s
motion for new counsel, principally on the ground that such
counsel had failed to identify any such potential claims,
stating that “there has not been demonstrated a sufficient
showing for the appointment of additional counsel.”
This refusal to appoint counsel is unsupportable by basic
legal ethics principles. Other legal authorities agree. See
David M. Barron, Martinez Casts Doubt on State Post conviction
and Federal Habeas Representation, 27-FALL CRIM JUST. 42 (2012)
(“Because attorneys cannot argue their own ineffectiveness,
[Martinez] creates a potential problem regarding whether state
postconviction counsel should represent the defendant in federal
habeas proceedings.”).
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The fact, even if true, that Gray’s counsel did not
identify any “sufficient[ly] substantial” claim under Martinez
does not undercut their request that independent counsel be
appointed to explore Gray’s Martinez claims. We see no material
difference between an ethical prohibition on a lawyer’s attempt
to investigate or advance her own potential errors, on the one
hand, and a like prohibition on her attempts to identify and
produce a list of her own errors giving rise to a “substantial
claim” on the other hand.
Accordingly, because Gray’s counsel are barred from fully
identifying, investigating and presenting his potential Martinez
claims, we vacate the judgment of the district court and remand
the case for further proceedings not inconsistent with this
Order. We defer consideration of the merits of the other claim
as to which a certificate of appealability has been granted.
Entered at the direction of Judge Davis, with the
concurrence of Judge Wynn and Judge Diaz.
For the Court
/s/ Patricia S. Connor, Clerk
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