Samuel Lopez v. Charles Ryan ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL VILLEGAS LOPEZ, 
Petitioner-Appellant, No. 12-99001
v. D.C. No.
CHARLES L. RYAN; RON CREDIO,  2:98-cv-00072-
Warden, Arizona State Prison- SMM
Eyman Complex, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted
May 14, 2012—San Francisco, California
Filed May 15, 2012
Before: Susan P. Graber, M. Margaret McKeown, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge McKeown
5317
5320 LOPEZ v. RYAN
COUNSEL
Kelly J. Henry, AFPD-Capital Habeas Federal Public Defend-
er’s Office, Nashville, Tennessee, for the petitioner-appellant.
Susanne Bartlett Blomo, Arizona Attorney General’s Office,
Phoenix, Arizona, for the respondents-appellees.
OPINION
McKEOWN, Circuit Judge:
This is the second time that Samuel Lopez seeks review in
this court with respect to his petition for habeas relief in fed-
eral 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 postcon-
viction 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 seek-
ing 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 inef-
fective 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 postconviction relief (“PCR”) coun-
sel 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.
LOPEZ v. RYAN 5321
We conclude that the district court did not abuse its discre-
tion in denying the Rule 60(b) motion. Further, Martinez
requires Lopez to show that the defaulted claim is a substan-
tial 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 out-
line Martinez, to clarify the scope of Lopez’s claims in federal
court, and to benchmark Lopez’s claim against the evidence.
DISCUSSION
I. Martinez v. Ryan
[1] 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 pro-
ceeding.” 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 recog-
nizing 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.
[2] 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:
5322 LOPEZ v. RYAN
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a col-
lateral 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 inef-
fective under the standards of Strickland v. Washing-
ton, 466 U.S. 668 (1984). To overcome the default,
a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a sub-
stantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.
Id. at 1318.
II. Procedural Background
Lopez has argued two different trial level IAC claims. First,
in his state collateral proceeding, Lopez argued that sentenc-
ing counsel was ineffective by failing to provide the psychiat-
ric expert with certain documents from potential witnesses
(the “documents claim”). Upon filing his habeas petition in
federal court, Lopez expanded the ineffectiveness argument to
include failure to fully investigate his family background so
the expert could undertake a full assessment of his behavior
and mental condition (the “family background claim”). Those
two claims, albeit separate claims, were referred to as Claim
1C in Lopez’s federal habeas petition.
In rejecting the initial federal habeas petition in 2008, the
district court explained why the family background claim was
not encompassed with the documents claim and hence was an
unexhausted claim. It reasoned that Lopez’s
claim asserted in state court was a very narrow one,
focused solely on counsel’s failure to provide the
expert with four specific documents from percipient
LOPEZ v. RYAN 5323
witnesses to support his tentative diagnosis of patho-
logical intoxication. In contrast, the claim as alleged
in [the district court was] counsel’s failure to con-
duct a comprehensive investigation of [Lopez’s]
background so that the expert could provide a com-
plete and thorough assessment of [Lopez’s] cogni-
tive functioning, as well as any psychological
conditions, addictive diseases, or neurological defi-
cits, and any other possible influences on [Lopez’s]
behavior and thought processes at the time of the
crime.
Lopez v. Schriro, No. CV-98-0072-PHX-SMM, 2008 WL
2783282, at *8 (D. Ariz. July 15, 2008) (unpublished).
On appeal, Lopez characterized Claim 1C as a single IAC
claim and argued that his claim was fully exhausted. In fram-
ing his argument thus, Lopez put all his eggs in one basket.
The scope of his IAC claim was squarely before the district
court and this court. Lopez never argued, as he could have,
any cause for failure to exhaust, even after the district court
ruled that the family background claim had been defaulted.
Nevertheless, we gave Lopez the benefit of the doubt. In
reviewing his family background claim we chose not to reach
the issue of procedural default, and instead resolved the claim
on other grounds, albeit not on the merits. We wrote, “[e]ven
assuming that the district court should not have reached the
issue of procedural default, Lopez failed to present any of the
evidence in support of his expanded claim in state court.
Thus, he is separately barred from seeking relief under 28
U.S.C. § 2254(e)(2).” Lopez, 630 F.3d at 1205. We did con-
sider the merits of Lopez’s documents claim and determined
that “Lopez has not shown a ‘reasonable possibility’ that, but
for counsel’s alleged errors, the sentencer would have con-
cluded that Lopez did not deserve a death sentence.” Id. at
1209.
5324 LOPEZ v. RYAN
After Martinez was decided, Lopez promptly filed a Rule
60(b) motion in district court, arguing that the ineffectiveness
of his PCR counsel excuses any procedural default with
respect to his family background claim. At oral argument,
counsel for Lopez affirmed that there is just one claim rele-
vant to this appeal: the family background claim.
In ruling on the 60(b) motion, the district court rejected
Lopez’s arguments on several grounds. The court first raised
the question whether our previous decision analyzed 28
U.S.C. § 2254(e)(2) in a way that “is akin to a merits ruling”
or is instead procedural. The district court considered both
possibilities. The district court concluded that, if our previous
ruling was on the merits, then Lopez’s motion should be dis-
missed “because it constitutes a successive habeas petition
seeking to re-raise a claim presented in a prior petition and
denied on the merits.” If, instead, this panel’s analysis was
procedural, the district court still ruled that Lopez’s motion
fails, because “Martinez does not constitute extraordinary cir-
cumstances sufficient to reopen judgment in this case.” To
determine whether Martinez constitutes the necessary extraor-
dinary circumstance to obtain relief under Rule 60(b), the dis-
trict court applied the six-factor test from Phelps v. Alameida,
569 F.3d 1120 (9th Cir. 2009). The district court found that
only the fourth factor (lack of delay in pursuing his claim)
favored Lopez and denied the motion.
III. Application of Martinez to Lopez’s Rule 60(b)
Appeal
As the Supreme Court held, for the first time in Martinez,
a petitioner should not be foreclosed from presenting “a
potentially legitimate claim of ineffective assistance of trial
counsel.” 132 S. Ct. at 1315. However, this case does not
present such a situation. Because Martinez leaves us with
some leeway as to how to approach a case like Lopez’s,
which is intertwined with a Rule 60(b) appeal, we analyze his
LOPEZ v. RYAN 5325
appeal under two alternate approaches. Both lead to the same
conclusion.
A. Phelps Analysis
[3] Lopez argues that the newly issued Martinez decision
constitutes extraordinary circumstances sufficient to reopen a
final judgment under Rule 60(b). See Gonzalez v. Crosby, 545
U.S. 524, 535 (2005) (“[O]ur cases have required a movant
seeking relief under Rule 60(b)(6) to show ‘extraordinary cir-
cumstances’ justifying the reopening of a final judgment.”).
Phelps sets out six factors that may be considered, among oth-
ers, to evaluate whether extraordinary circumstances exist.
“Ordinarily, this analysis will be conducted by district
courts in the course of reviewing Rule 60(b)(6) motions in the
first instance. However, as the Supreme Court held in Gonza-
lez, 545 U.S. at 536-38, appellate courts may, in their discre-
tion, decide the merits of a Rule 60(b) motion in the first
instance on appeal.” Phelps, 569 F.3d at 1134-35. We follow
the approach taken in both Gonzalez and Phelps, and we con-
duct our own, independent Rule 60(b) analysis. Because we
conclude—under our own analysis—that Lopez has not met
the showing of “extraordinary circumstances” justifying
reopening, we need not parse the district court’s analysis.
However, the bottom line result is the same—denial of the
Rule 60(b) relief—even under an abuse of discretion review.
See Delay v. Gordon, 475 F.3d 1039, 1043 (9th Cir. 2007)
(holding that we review the district court’s Rule 60(b) analy-
sis for abuse of discretion).
1. The first factor considers the nature of the intervening
change in the law. Phelps, 569 F.3d at 1135. In Gonzalez, 545
U.S. at 536, the Eleventh Circuit had applied its settled law
on the interpretation of 28 U.S.C. § 2244(d)(2) to bar the peti-
tioner’s claim on statute-of-limitations grounds. But other cir-
cuits had disagreed with the Eleventh Circuit’s “unduly
parsimonious interpretation of § 2244(d)(2).” Id. In that light,
5326 LOPEZ v. RYAN
the Court held that “[i]t is hardly extraordinary that subse-
quently, after petitioner’s case was no longer pending, this
Court” rejected the Eleventh Circuit’s interpretation. Id. The
Court thus held that this factor weighed strongly against a
finding of extraordinary circumstances. Id.; see also Phelps,
569 F.3d at 1136 (holding that this factor weighs in favor of
the petitioner where the issue was unresolved during the fed-
eral habeas proceedings).
The nature of the intervening change of law at issue here
differs from the situations at issue in Gonzalez and Phelps.
Here, it was settled law that post-conviction counsel’s effec-
tiveness was irrelevant to establishing cause for procedural
default. Coleman v. Thompson, 501 U.S. 722 (1991). In Mar-
tinez, 132 S. Ct. at 1315, however, the Supreme Court “quali-
fie[d] Coleman by recognizing a narrow exception.” In our
view, these circumstances weigh slightly in favor of reopen-
ing Lopez’s habeas case. Unlike the “hardly extraordinary”
development of the Supreme Court resolving an existing cir-
cuit split, Gonzalez, 545 U.S. at 536, the Supreme Court’s
development in Martinez constitutes a remarkable—if “limit-
ed,” Martinez, 132 S. Ct. at 1319—development in the
Court’s equitable jurisprudence.
2. The second factor considers the petitioner’s exercise of
diligence in pursuing the issue during the federal habeas pro-
ceedings. Phelps, 569 F.3d at 1136. Here, we must consider
Lopez’s diligence in pursuing his current theory that his PCR
counsel’s performance provided cause for Lopez’s failure to
develop, before the state courts, the factual record concerning
his trial counsel’s ineffectiveness. This factor weighs against
reopening Lopez’s habeas case.
Until the Supreme Court decided Martinez, after Lopez’s
federal proceedings had become final, Lopez had never pur-
sued the theory that he now advances. In fact, his theory dur-
ing his federal proceedings was that his PCR counsel had
been diligent in developing his IAC claim. That theory is
LOPEZ v. RYAN 5327
obviously contrary to the position that he takes now. Lopez
did not raise this issue in his petition for certiorari, resting
instead on his theory that the State purportedly “waived” all
procedural bars. In other words, when given a chance to make
his best arguments before the Supreme Court—which has the
authority to overturn its precedents—Lopez pointed to the
State’s conduct, not alleged ineffectiveness of his PCR coun-
sel. In this same time frame, of course, other petitioners, like
Martinez, were challenging Coleman.1
3. The third factor relates to the interest in finality. Id. at
1137. The State’s and the victim’s interests in finality, espe-
cially after a warrant of execution has been obtained and an
execution date set, weigh against granting post-judgment
relief. This factor does not support reopening Lopez’s habeas
case.
4. The fourth factor concerns “delay between the finality
of the judgment and the motion for Rule 60(b)(6) relief.” Id.
at 1138. We agree with the district court that the relatively
short time period between the finality of Lopez’s federal
habeas proceedings and his Rule 60(b) motion weighs in
favor of reopening Lopez’s habeas case.
5. The fifth consideration pertains to the degree of con-
nection between Lopez’s case and Martinez. Id. at 1138-39.
In Phelps, “the intervening change in the law directly over-
ruled the decision for which reconsideration [had been]
sought.” Id. at 1139. We held that that fact supported recon-
sideration. Id.1
We make clear that we do not fault Lopez for failing to raise his PCR
counsel’s ineffectiveness before the district court or before us in his origi-
nal federal habeas proceedings. We agree with Lopez that imposing such
a penalty would have the perverse effect of encouraging federal habeas
lawyers to raise every conceivable (and not so conceivable) challenge—
even those challenges squarely foreclosed by binding circuit and Supreme
Court precedent. We do not believe that Gonzalez intended such an effect.
5328 LOPEZ v. RYAN
Here, however, the connection between the intervening
change of law and Lopez’s case is not as straightforward. On
its face, Martinez permits the federal courts to excuse a peti-
tioner’s procedural default, if the petitioner’s PCR counsel
provided ineffective assistance concerning a certain narrow
category of claims. In Lopez’s case, however, we did not rest
our decision on procedural default. Instead, we assumed that
Lopez could overcome the “procedural default” bar, and we
held that, even so, Lopez’s claim failed for an entirely sepa-
rate reason—his failure to develop the factual basis of his
claim pursuant to 28 U.S.C. § 2254(e)(2).
Lopez argues that it is but a small expansion of Martinez
to hold that the “narrow exception” in Martinez necessarily
applies not only to PCR counsel’s ineffective failure to raise
a claim (the subject of procedural default) but also to PCR
counsel’s ineffective failure to develop the factual basis of a
claim (the subject of § 2254(e)(2)). We need not decide
whether Lopez is correct, though we do note tension between
his theory and the Supreme Court’s jurisprudence in this area,
see, e.g., Cullen v. Pinholster, 131 S. Ct. 1388 (2011). For
present purposes, it suffices to note that the connection
between Lopez’s current theory and the intervening change in
law does not present the sort of identity that we addressed in
Phelps. Given the difference between procedural default and
§ 2254(e)(2), and the potentially significant legal difference
between those doctrines, this factor does not weigh in favor
of reopening Lopez’s case.
6. The final factor concerns comity. In light of our previ-
ous opinion and those of the various other courts that have
addressed the merits of several of Lopez’s claims, and the
determination regarding Lopez’s lack of diligence, the comity
factor does not favor reconsideration.
[4] In sum, the equitable factors described above provide
little overall support for reopening Lopez’s case. We recog-
nize that one could weigh the six factors differently and, in
LOPEZ v. RYAN 5329
some ways, the equitable considerations in this case are close.
In the final analysis, however, as discussed below, Lopez’s
underlying claim does not present a compelling reason to
reopen the case, because that claim is not a substantial one.
In that light, and in considering the six factors discussed
above, we decline to reopen Lopez’s habeas case.
B. Substantiality of Underlying Claim
[5] The parties take different views as to the scope of Mar-
tinez. We need not decide whether Martinez is limited to pro-
cedural default or also applies to other circumstances such as
those presented here. At oral argument, counsel for both sides
agreed that, assuming the applicability of Martinez, it is
appropriate for this court to conduct a prejudice analysis.
Thus, in the alternative, we consider whether, even if Lopez
could pass the procedural hurdles, he can succeed under Mar-
tinez.
[6] According to Martinez, “[t]o overcome the default, a
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.” 132 S. Ct. at 1318. Thus, Martinez
requires that a petitioner’s claim of cause for a procedural
default be rooted in “a potentially legitimate claim of ineffec-
tive assistance of trial counsel.” Id. at 1315. At bottom, Lopez
argues that, had counsel provided his psychiatric expert “with
a broad range of biographical data and family and social his-
tory that were necessary for a proper diagnosis,” Lopez, 630
F.3d at 1204, it would have given the doctor the basis to pro-
vide a more definitive opinion on Lopez’s cognitive function-
ing, and presumably would have changed the outcome of his
sentencing. This double layer of hypothetical speculation is
more than a stretch and offers no reasonable probability that
this evidence would change the resulting sentence. Along
with his habeas petition, Lopez provided substantial evidence
5330 LOPEZ v. RYAN
regarding his background and its claimed impact on his diag-
nosis. That evidence was before this court in the first appeal.
[7] The nature of Lopez’s crime was so heinous that, even
accepting his claims about his chaotic and violent childhood,
we cannot characterize his background claim as substantial. In
fact the claim was a very narrow one and related only to sup-
plemental evidence with respect to his psychiatrist. Even now,
as reaffirmed by counsel at oral argument, Lopez does not
assert a broad-ranging claim of IAC for failure to investigate
his background and present his circumstances to the sentenc-
ing judge. Rather, his claim is confined to claimed deficien-
cies in providing further information to his expert. Viewed in
the way he frames it, the claim cannot be considered substan-
tial, nor does the record support any suggestion of prejudice.
Just this week our circuit interpreted Martinez and held that
a petitioner “is entitled to a remand if he can show that PCR
counsel was ineffective under Strickland for not raising a
claim of ineffective assistance of trial counsel, and also ‘that
the underlying ineffective-assistance-of-trial-counsel claim is
a substantial one.’ ” Sexton v. Cozner, No. 10-35055, ___
F.3d ___, op. at 5273 (9th Cir. May 14, 2012) (quoting Marti-
nez, 132 S. Ct. at 1318). To have a legitimate IAC claim a
petitioner must be able to establish both deficient representa-
tion and prejudice. Strickland, 466 U.S. at 687. The court in
Sexton provides an analysis under Strickland. Similar analysis
here does not favor Lopez. “To establish that PCR counsel
was ineffective, [Lopez] must show that trial counsel was
likewise ineffective . . . .” Sexton, op at 5277.
On appeal from denial of his habeas petition, Lopez dedi-
cated much of his opening brief to detailing his chaotic, vio-
lent family background and debilitating substance abuse
problems. But as we pointed out, “Lopez argues that the new
evidence at issue merely ‘supplement[s] the facts supporting
the claim [he] made in state court,’ ” Lopez, 630 F.3d at 1206
n.8 (alteration in original).
LOPEZ v. RYAN 5331
[8] The record is full of evidence of the depravity and bru-
tal nature of the crime.
The evidence at trial shows that there was a tre-
mendous struggle inside the victim’s residence.
Blood spatter was located on the floor in the kitchen,
living room and the bathroom. Blood spatter was
also observed on the walls in the kitchen and the
bathroom. . . . [A]t one point during the struggle the
victim was at least erect bleeding on to the floor,
standing erect bleeding on to the floor. Undoubtedly
she was either fighting the defendant and/or begging
for her life. . . . When [the victim’s] body was dis-
covered on the morning of the 29th, she was nude
from the waist down. The defendant had taken her
pajama bottoms, tied them snugly around her eyes.
A white lace scarf had been crammed tightly into her
mouth. . . . [She] had approximately 23 stab wounds
in the left breast and upper chest area. Many of these
wounds would have by themselves been potentially
fatal. Her throat was cut.
Lopez, 2008 WL 2783282, at *23.
[9] The horrific crime is described in greater detail than
need be repeated here. The sentencing judge put it cogently:
“I’ve been practicing law since 1957. I’ve prosecuted first
degree murder cases. I defended first degree murder cases. In
the last eight years or so I’ve been on the criminal bench
approximately five years. Of that time I’ve presided over
numerous first degree murder cases. I have never seen one as
bad as this one.” We recognize that the IAC standard is an
objective one, but in assessing whether there would be preju-
dice, we take into account the reasons for imposing the death
penalty. Even accepting and reviewing de novo Lopez’s late-
5332 LOPEZ v. RYAN
offered evidence at the first habeas proceeding, Lopez fails to
meet the Martinez test of substantiality as to prejudice.2
AFFIRMED.
2
The parties also briefed two related procedural arguments which were
not independently certified: (1) whether Lopez’s motion is in substance a
second or successive petition; and (2) whether the petition can be treated
as a first in time petition. In light of our analysis, we need not reach these
issues, and we agree with the district court that no certificate of appeala-
bility should have issued.