Anthony Juniper v. Keith Davis , 737 F.3d 288 ( 2013 )

FILED: December 10, 2013
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7
ANTHONY BERNARD JUNIPER,
Petitioner - Appellant,
v.
KEITH W. DAVIS, Warden, Sussex I State Prison
Respondent - Appellee.
O R D E R
GREGORY, Circuit Judge:
Petitioner Anthony Bernard Juniper was convicted in the
Circuit Court for the City of Norfolk on four counts of capital
murder and other related felony charges. Following a jury
trial, Juniper was sentenced to death for each of the capital
murder convictions. The jury found the death sentence justified
by two aggravating factors, vileness and future dangerousness.
The Supreme Court of Virginia affirmed Juniper’s convictions and
sentences, and the Supreme Court of the United States denied
certiorari. See Juniper v. Commonwealth, 626 S.E.2d 383 (Va.),
cert. denied, 127 S. Ct. 397 (2006).
Juniper filed a petition for writ of habeas corpus in the
Supreme Court of Virginia, which was ultimately dismissed. See
Juniper v. Warden of Sussex I State Prison, 707 S.E.2d 290
(Va.), cert. denied, 132 S. Ct. 822 (2011). Juniper then filed
his federal habeas petition in the United States District Court
for the Eastern District of Virginia. The district court denied
Juniper’s petition, see Juniper v. Pearson, No. 3:11-cv-00746,
2013 WL 1333513 (E.D. Va. 2013), but issued a certificate of
appealability on two issues: (1) whether the district court
correctly determined that Juniper’s allegations in Claim I of
his federal habeas petition failed to satisfy the materiality
standard under Brady v. Maryland, 373 U.S. 83 (1963); and
(2) whether Juniper was entitled to the appointment of new
counsel under Martinez v. Ryan, 132 S. Ct. 1309 (2012).
We requested expedited briefing on the second issue,
asking:
Should this case be vacated and remanded under the
reasoning of this court’s order in Gray v. Pearson,
No. 12-5, 2013 WL 2451083 (4th Cir. June 7, 2013)[?]
Having considered the parties’ responses, we find the reasoning
of Gray equally applicable to the case at hand, and vacate in
part and remand for further proceedings consistent with this
order.
2
The Court in Gray made it clear why a federal habeas
petitioner is entitled to independent counsel to pursue the
ineffectiveness of state habeas counsel in order to raise
procedurally barred “ineffective-assistance-of-trial-counsel”
claims in the happenstance that the petitioner is represented by
the same counsel in both federal and state habeas proceedings.
Therefore, we only provide a short recitation of the facts and
reasoning of Gray, as we adopt Gray’s reasoning in toto.
While federal habeas proceedings were pending in Gray, the
Supreme Court issued Martinez v. Ryan, deciding that “[w]here,
under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding, there
was no counsel or counsel in that proceeding was ineffective.”
132 S. Ct. at 1320. Thus, for states like Virginia – where a
petitioner can only raise an ineffective assistance claim on
collateral review – Martinez announced that federal habeas
counsel can investigate and pursue the ineffectiveness of state
habeas counsel in an effort to overcome the default of
procedurally barred ineffective-assistance-of-trial-counsel
claims.
3
In accordance with Martinez, the Gray panel held that the
petitioner was entitled to independent counsel in his federal
habeas proceedings to investigate and pursue the ineffectiveness
of state habeas counsel, rightly espousing “a clear conflict of
interest exists in requiring [petitioner’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 [petitioner] in his state post-conviction
proceedings.” 2013 WL 2451083, at *3. 1 Based on the reasoning
of the Gray order, we find that the same outcome is required
here.
Martinez was decided during the pendency of Juniper’s
federal habeas proceedings. Juniper had the same counsel in
both his state and federal habeas proceedings, and then after
Martinez, petitioned the district court to appoint new,
independent counsel to pursue his claims under Martinez. For
all relevant purposes, Juniper’s case is on all fours
1
Notably, it did not matter to the Gray panel that
petitioner did not identify a substantial ineffective-
assistance-of-trial-counsel claim under Martinez, see Gray, 2013
WL 2451083, at *3, a reason that compelled the district court to
deny Juniper’s motion for independent counsel. As in Gray, the
fact that Juniper did not identify a substantial claim under
Martinez is irrelevant to our disposition of this case.
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procedurally with Gray. 2 And as in Gray, we find it ethically
untenable to require counsel to assert claims of his or her own
ineffectiveness in the state habeas proceedings in order to
adequately present defaulted ineffective-assistance-of-trial-
counsel claims under Martinez in the federal habeas proceedings.
To be clear, if a federal habeas petitioner is represented
by the same counsel as in state habeas proceedings, and the
petitioner requests independent counsel in order to investigate
and pursue claims under Martinez in a state where the petitioner
may only raise ineffective assistance claims in an “initial-
review collateral proceeding,” qualified and independent counsel
is ethically required. A district court must grant the motion
for appointment of counsel without regard to whether the
underlying motion identifies a ‘substantial’ ineffective
assistance claim under Martinez. See Gray, 2013 WL 2451083, at
*3 (“The fact, even if true, that Gray’s counsel did not
2
The only arguably relevant distinction between Gray and
the case at hand is that Juniper had a second chair counsel
appointed for his federal habeas proceedings who did not
represent him in state habeas proceedings. The second chair,
however, is not qualified under 18 U.S.C. § 3599(c) to represent
Juniper independently, and therefore this distinction is of no
moment. An attorney who is not authorized to represent a
federal habeas petitioner independently necessarily fails to
serve as the independent counsel called for in Gray. Juniper is
entitled to qualified, independent counsel at all stages of his
capital habeas proceedings, including the investigation of
claims under Martinez. See Martel v. Clair, 132 S. Ct. 1276
(2012).
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identify any ‘sufficient[ly] substantial’ claim under Martinez
does not undercut their request that independent counsel be
appointed to explore Gray’s Martinez claims.”) (alterations in
original).
We vacate in part the district court’s decision with
respect only to the appointment of independent counsel, and
remand for further proceedings in accordance with this order.
We defer consideration of Juniper’s pending motion to expand the
certificate of appealability, motion to exceed page length, and
motion for leave to file a reply to the government’s response.
Entered at the direction of Judge Gregory, with the
concurrence of Judge Wynn and Judge Diaz.
For the Court
/s/ Patricia S. Connor, Clerk
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