Matthew Sexton v. Mike Cozner ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW RYAN SEXTON,  No. 10-35055
Petitioner-Appellant,
D.C. No.
v.
MIKE COZNER, Superintendent,  3:06-cv-00209-AC
ORDER AND
MacLaren Youth Correctional
AMENDED
Facility,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
May 8, 2012—Portland, Oregon
Filed May 13, 2012
Amended May 14, 2012
Before: A. Wallace Tashima, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Tallman
5261
5264 SEXTON v. COZNER
COUNSEL
Mark Bennett Weintraub, Assistant Federal Public Defender,
Eugene, Oregon, for petitioner-appellant Matthew Sexton.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor
General, and Janet A. Klapstein, Senior Assistant Attorney
General, Salem, Oregon, for respondent-appellee Mike Coz-
ner, Superintendent, MacLaren Youth Correctional Facility.
ORDER
The opinion filed on May 13, 2012, is AMENDED as fol-
lows: The phrase “and Sexton does not present a substantial
claim that PCR counsel was ineffective” on page 17 of the
opinion is replaced with “and Sexton does not present a sub-
stantial claim that trial counsel was ineffective.”.
SEXTON v. COZNER 5265
An amended opinion will be filed concurrently with this
order.
OPINION
TALLMAN, Circuit Judge:
Matthew Ryan Sexton (“Sexton” or “Petitioner”), an Ore-
gon state prisoner, appeals the district court’s denial of his 28
U.S.C. § 2254 habeas corpus petition. He argues that trial
counsel’s advice regarding his guilty plea was constitutionally
inadequate, thereby rendering his plea unknowing or involun-
tary. Sexton also seeks a limited remand under the Supreme
Court’s recent decision in Martinez v. Ryan, 132 S. Ct. 1309(2012), to allow the district court to review the merits of two
new claims for ineffective assistance of trial counsel that he
raised for the first time in his federal habeas petition, but that
the district court ruled were procedurally defaulted.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,
and we deny Sexton’s motion for a limited remand and affirm
the denial of his § 2254 habeas petition.
I
We review the dismissal of a habeas petition and questions
regarding procedural default de novo. Ivy v. Pontesso, 328
F.3d 1057, 1059 (9th Cir. 2003); Sivak v. Hardison, 658 F.3d
898, 906 (9th Cir. 2011). If the state prisoner’s claim was
adjudicated on the merits in state court, we may grant habeas
relief only if the state court decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1), or if the state court
decision “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court pro-
ceeding,” 28 U.S.C. § 2254(d)(2).
5266 SEXTON v. COZNER
II
The pertinent facts regarding Sexton’s involvement in the
murders and the procedural history, as summarized by the dis-
trict court, are as follows:
In 1998, when Petitioner was seventeen, he was
indicted on four counts of Aggravated Murder with
a Firearm in the deaths of his father and mother.
Petitioner confessed to shooting his parents and he
led police to the locations where he had left the
bodies. He later recanted, claiming his younger
brother shot his parents and that his confession was
to protect his brother. Following Petitioner’s recanta-
tion, counsel arranged for Petitioner to take a poly-
graph, but Petitioner failed it. Despite counsel
informing Petitioner the polygraph was not admissi-
ble and his recantation was a plausible defense, Peti-
tioner confessed anew during the defense’s
psychological evaluation.
Plea negotiations led to the Aggravated Murder
charges being reduced and Petitioner pleading guilty
to two counts of intentional Murder, with the issue
of consecutive versus concurrent sentencing reserved
for the court following argument. Counsel hired a
nationally known expert on parricide who recom-
mended Petitioner’s allegations of abuse by his
father be presented as a mitigating factor supporting
concurrent terms of imprisonment. Counsel also met
with the family on several occasions and understood
them to support concurrent sentencing, until the
issue of abuse as a mitigating factor was raised. At
the sentencing hearing, a number of family members
spoke in favor of consecutive sentencing, possibly in
response to Petitioner’s allegations of abuse. The
sentencing court imposed two consecutive life terms
of imprisonment under Ballot Measure 11, with a
SEXTON v. COZNER 5267
minimum of twenty-five years each without the pos-
sibility of parole.
Petitioner filed a direct appeal, challenging the
constitutionality of consecutive sentencing under
Ballot Measure 11, as applied to him. The Oregon
Court of Appeals affirmed the sentencing court with-
out opinion, and the Oregon Supreme Court denied
review.
Petitioner filed for post-conviction relief (“PCR”),
raising seven claims of ineffective assistance of
counsel, and two claims alleging his pleas of guilty
were not knowingly, intelligently and voluntarily
made. He contended he pled guilty to the murders to
make his family happy and to protect his younger
brother, whom he alleged committed the murders.
The PCR trial court denied relief, issuing extensive
written findings. Petitioner appealed, but the Oregon
Court of Appeals affirmed without opinion, and the
Oregon Supreme Court denied review.
Sexton v. Cozner, No. 06-CV-209-AC, 2009 WL 5173714, at
*1-2 (D. Or. Dec. 21, 2009) (internal citations omitted).
Relevant here, the state PCR court rejected Sexton’s claim
that his trial counsel was constitutionally ineffective in repre-
senting to Sexton that his family members would support con-
current sentences, thereby rendering his guilty plea
unknowing and involuntary. The court found that the plea
agreement and transcript of the plea hearing showed that Sex-
ton understood that it was within the discretion of the trial
judge to impose consecutive sentences, and he did not actu-
ally believe that he would get concurrent treatment based
upon trial counsel’s representation as to the anticipated family
recommendation. Further, the court held that Sexton would
have pleaded guilty in any event, and was not credible to the
extent he claimed otherwise.
5268 SEXTON v. COZNER
Sexton was represented by appointed counsel in both the
direct appeal and in the PCR habeas proceeding before the
Oregon courts. At trial and on direct appeal, he was repre-
sented by attorney Kenneth Hadley. In the state PCR proceed-
ing, he was represented by David Kuhns.
Sexton, however, filed a pro se federal habeas petition on
February 14, 2006, where he raised a number of issues. First,
Sexton argued, as he had in the state PCR court, that trial
counsel was ineffective because he failed to inform Sexton
that his family would likely support the prosecution’s position
that his sentences should be consecutive and that, as a result,
his guilty plea was unknowing and involuntary. Sexton also
raised two new claims of ineffective assistance of trial coun-
sel that were not adjudicated in state court. Specifically, he
argued that trial counsel was ineffective because he (1)
arranged for Sexton to take a polygraph conducted by a law
enforcement examiner, and (2) provided to the District Attor-
ney (“D.A.”) a full written account prepared by Sexton in
which he recanted his earlier confession to the murders and
claimed that his younger brother, Brian Sexton, killed his par-
ents.
On November 3, 2008, Sexton filed a Memorandum in
Support of the Federal Habeas Petition, where he argued he
received ineffective assistance of counsel because his attor-
ney: (1) violated the attorney-client privilege by disclosing the
confidential recantation letter he received from Sexton; (2)
agreed to a non-confidential polygraph examination, which
Sexton failed and the results of which the judge relied on at
sentencing; and (3) misled Sexton into entering a guilty plea
by leading him to believe that his family would support con-
current sentences that would have made him eligible for
parole after twenty-five years.
Magistrate Judge John V. Acosta issued Findings and Rec-
ommendations (“Report and Recommendation”) on Septem-
ber 11, 2009, in which he recommended that the district court
SEXTON v. COZNER 5269
deny Sexton’s habeas petition. As to the claim regarding inef-
fective assistance of trial counsel resulting in an involuntary
guilty plea, the Magistrate Judge held that the PCR court’s
factual findings that Sexton’s plea was knowing and voluntary
were presumed to be correct pursuant to 28 U.S.C.
§ 2254(e)(1), and that Sexton had not shown that the PCR
court’s rejection of this claim was contrary to or an unreason-
able application of clearly established federal law. The Report
and Recommendation also concluded that Sexton’s ineffective
assistance of counsel claims regarding the disclosure of the
confidential recantation letter blaming his brother for the mur-
ders, and trial counsel’s decision to allow Sexton to be sub-
jected to a state-administered polygraph without first
conducting a private polygraph, were procedurally defaulted
because Sexton failed to raise them during the state PCR pro-
ceedings. As a result, the Report and Recommendation con-
cluded that Sexton failed to exhaust state remedies, and
because he did not attempt to excuse the procedural default,
habeas relief was precluded.
Judge Anna J. Brown of the District of Oregon adopted the
Report and Recommendation and denied Sexton’s habeas
petition. On December 30, 2009, the district court denied a
certificate of appealability, stating that Sexton failed to make
a substantial showing of the denial of a constitutional right.
The district court dismissed the petition with prejudice the
following day.
On July 18, 2011, we granted Sexton’s request for a certifi-
cate of appealability as to the issue whether Sexton’s trial
counsel’s advice regarding Sexton’s guilty plea was constitu-
tionally inadequate, thereby rendering Sexton’s plea unknow-
ing or involuntary. The parties subsequently submitted
briefing on that issue, and we set oral argument for May 8,
2012.
After briefing was completed in this case, but before we
had the opportunity to hear argument, the Supreme Court
5270 SEXTON v. COZNER
decided Martinez v. Ryan. On April 16, 2012, shortly after the
decision in Martinez, Sexton filed a Motion for Limited
Remand and to Strike the May 8, 2012, Oral Argument
(“Motion”). In that Motion, Sexton asked us to: (1) remand
the case to the district court to consider whether, in light of
Martinez, it would excuse the procedural default of his new
ineffective assistance of counsel claims; and (2) strike the oral
argument from the May 8, 2012, calendar; or (3) alternatively,
to expand the COA to address the Martinez issue in the first
instance.
The Warden filed a supplemental brief opposing the
Motion on two grounds. First, the Warden argued that Sex-
ton’s claims for which he seeks a limited remand do not fall
within the narrow exception created in Martinez for “substan-
tial” legal claims; and second, that Sexton fails to demonstrate
that he was denied the opportunity to develop his ineffective
assistance of counsel claims at the PCR stage due to the inef-
fective assistance of his post-conviction trial counsel.
On April 27, 2012, we denied Sexton’s motion to strike
oral argument, deferred consideration of his argument on the
merits and his motion for a limited remand until after oral
argument, and directed the parties to be prepared to address
whether Martinez applies here and if limited remand to the
district court is necessary. We also deferred until after oral
argument our decision to issue a Certificate of Appealability
regarding the uncertified Martinez issue. We expand the Cer-
tificate of Appealability to address this issue, 9th Cir. R.
22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.
1999) (per curiam), but deny all relief.
III
Sexton argues that his guilty plea was unknowing and
involuntary because trial counsel was ineffective in failing to
advise him that his family would likely oppose concurrent
sentences. We disagree and hold that the advice provided by
SEXTON v. COZNER 5271
trial counsel with regard to Sexton’s guilty plea was constitu-
tionally adequate under Strickland v. Washington, 466 U.S.
668 (1984), and that Sexton’s plea was knowing and volun-
tary as a result. Because Sexton’s claim fails under de novo
review, it necessarily fails under AEDPA’s deferential
review. Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010).
[1] Sexton cannot establish that his attorney’s performance
fell below an objective standard of reasonableness, or that
there is a reasonable probability that, but for his counsel’s
errors, he would not have pleaded guilty and would have
insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52,
57-59 (1985); Strickland, 466 U.S. at 687. First, Sexton fails
to show that Hadley performed deficiently by failing to
inform Sexton at the time he pleaded guilty that some mem-
bers of the victims’ family might support the prosecution’s
recommendation that Sexton’s sentences should run consecu-
tively. Sexton swore in open court that his guilty plea was not
the result of any promises not specified in the plea agreement,
see Weaver v. Palmateer, 455 F.3d 958, 968-69 (9th Cir.
2006), and expressly acknowledged that the ultimate decision
as to the appropriate sentence lay solely with the court. More-
over, defense counsel’s decision to discuss Sexton’s history as
a victim of parental abuse, which allegedly caused certain
members of the victims’ family to abandon their support for
Sexton’s sentences to run concurrently, was a strategic deci-
sion that cannot form the basis of a claim for ineffective assis-
tance of counsel. Strickland, 466 U.S. at 689.
[2] Second, the record does not support Sexton’s assertions
that but for his counsel’s failure to advise him of his family’s
position on sentencing, he would not have pled guilty and
would have insisted on going to trial. Hill, 474 U.S. at 59;
Lambert v. Blodgett, 393 F.3d 943, 979-80 (9th Cir. 2004);
Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997). At the
plea hearing, Sexton stated he understood that each count of
intentional murder carried a mandatory sentence of life
imprisonment with a minimum of twenty-five years imprison-
5272 SEXTON v. COZNER
ment. He acknowledged that the sentences could run consecu-
tively or concurrently, and that he could “face a maximum
potential penalty of up to fifty years imprisonment as a mini-
mum sentence if the [ ] sentences [were] made to run con-
secutive[ly].” He affirmed that the only promises made to him
were contained in the plea agreement, which clearly informed
Sexton that the judge was not bound by sentencing recom-
mendations and could impose concurrent or consecutive sen-
tences. Under these circumstances, Sexton cannot
demonstrate that he was prejudiced by his attorney’s predic-
tion. Womack, 497 F.3d at 1003-04.
[3] Finally, the state court’s adverse credibility finding was
not unreasonable or incorrect by clear and convincing evi-
dence. Miller-el v. Cockrell, 537 U.S. 322, 340 (2003); Wea-
ver, 455 F.3d at 969. The PCR court, after reviewing the
transcript of the sentencing, the plea document, the deposition
testimony of Sexton, the affidavit of trial counsel, and sixty-
two exhibits admitted into evidence, concluded Sexton was
not credible.1 We must defer to that finding of fact, because
Sexton has not presented clear and convincing evidence to
rebut the PCR court’s adverse determination that he was not
credible. 28 U.S.C. § 2254(d) and (e)(1).
[4] Because Sexton has not established that he received
ineffective assistance of counsel under de novo review, a for-
tiori he has not shown that the PCR court’s rejection of this
claim was contrary to, or an unreasonable application of,
1
We note that Sexton has told different stories about what happened on
July 14, 1998, the night of the murders. He confessed to sheriffs’ deputies
that he laid in wait and killed his parents. Then he recanted before his plea,
insisting to his defense lawyer that his younger brother did it. When he
failed the polygraph, he reverted to the first confession by once again
admitting his guilt to the defense psychologist, who testified in mitigation
at his sentencing proceeding. Then, when he was represented by a new
lawyer during the State post-conviction proceedings, he once again
asserted that he was innocent. This constant prevarication led to the
adverse credibility finding on post-conviction review.
SEXTON v. COZNER 5273
clearly established federal law. See Berghuis, 130 S. Ct. at
2264; see also Cooper v. Brown, 510 F.3d 870, 885 n.10, 919
(9th Cir. 2007). Therefore, we may not grant habeas relief on
this claim. See 28 U.S.C. § 2254(d).
IV
[5] Sexton argues that this case should be remanded to the
district court following the Supreme Court’s decision in Mar-
tinez, 132 S. Ct. at 1309. We address whether remand is
appropriate in this case, where the district court found that an
ineffective assistance of counsel claim was procedurally
defaulted as a result of PCR counsel’s failure to raise the
claim in state court, despite having raised seven other ineffec-
tive assistance of counsel claims at the PCR stage.
Sexton 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 . . . .” Martinez at 1318. In order to show
ineffectiveness of PCR counsel, Sexton must show that PCR
counsel’s failure to raise the claim that trial counsel was inef-
fective was an error “so serious that counsel was not function-
ing as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and caused Sexton prejudice. Strickland, 466
U.S. at 687. Counsel is not necessarily ineffective for failing
to raise even a nonfrivolous claim, Knowles v. Mirzayance,
556 U.S. 111, 127 (2009), so clearly we cannot hold counsel
ineffective for failing to raise a claim that is meritless.
Accordingly, a PCR counsel would not be ineffective for fail-
ure to raise an ineffective assistance of counsel claim with
respect to trial counsel who was not constitutionally ineffec-
tive. Further, “[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.” Id.5274 SEXTON v. COZNER
(citing Miller-El v. Cockrell, 537 U.S. 322 (2003) (emphasis
added)).
We therefore examine the record to determine whether
there is sufficient evidence before us on the necessary show-
ing under Martinez—ineffective assistance of PCR counsel
(due to failing to raise ineffective assistance of trial counsel)
that would allow us to decide whether Sexton has demon-
strated “cause.” Only if we determine that Sexton has demon-
strated cause, would we proceed to determine if Sexton has
demonstrated prejudice to meet the “cause and prejudice”
standard, and has also demonstrated a “substantial claim of
ineffective assistance at trial,” id. at 1321. As the Supreme
Court explained in Martinez:
To overcome the default, a prisoner must also dem-
onstrate that the underlying ineffective-assistance-of-
trial-counselclaim is a substantial one, which is to
say that the prisoner must demonstrate that the claim
has some merit.
Id. at 1318 (citation omitted). We hold that in light of the
record in this case, remand to the district court is not proper
under Martinez because Sexton does not meet the narrow cir-
cumstances recently announced by the Supreme Court neces-
sary to show “cause,” the first prong necessary to avoid the
procedural bar.
A
Generally, “a state prisoner’s failure to comply with the
state’s procedural requirements in presenting his claims is
barred from obtaining a writ of habeas corpus in federal court
by the adequate and independent state ground doctrine.”
Schneider v. McDaniel, 674 F.3d 1144, 1152 (9th Cir. 2012)
(citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
Specifically, the Supreme Court has held:
SEXTON v. COZNER 5275
In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an inde-
pendent and adequate state procedural rule, federal
habeas review of the claims is barred unless the pris-
oner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of fed-
eral law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of
justice.
Coleman, 501 U.S. at 750 (emphasis added).
“Cause” under Coleman, “must be something external to
the petitioner, something that cannot be fairly attributed to
him.” Id. at 753 (emphasis in original); see also Schneider,
674 F.3d at 1153 (“Unless the prisoner received ineffective
assistance of counsel, cause is ordinarily shown by demon-
strating that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s proce-
dural rule.” (internal citation and quotation marks omitted)).
To demonstrate “prejudice,” a habeas petitioner must “es-
tablish [ ] that the constitutional errors worked to his actual
and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” Schneider, 674 F.3d at
1153 (internal quotation marks omitted).
In evaluating ineffective assistance of counsel claims in
habeas proceedings, we have cited Coleman for the proposi-
tion that an attorney’s negligence in a post-conviction pro-
ceeding did not establish “cause,” and therefore the
negligence was insufficient to excuse procedural default. See
Towery v. Ryan, 673 F.3d 933, 941 (9th Cir. 2012) (“A fed-
eral habeas petitioner—who as such does not have a Sixth
Amendment right to counsel—is ordinarily bound by his
[PCR] attorney’s negligence, because the attorney and the cli-
ent have an agency relationship under which the principal is
bound by the actions of the agent.”) (citing Coleman, 501
5276 SEXTON v. COZNER
U.S. at 753 (“Attorney ignorance or inadvertence is not
‘cause’ [for excusing procedural default] because the attorney
is the petitioner’s agent when acting, or failing to act, in fur-
therance of the litigation, and the petitioner must bear the risk
of attorney error.” (internal citation and quotation marks omit-
ted))).
Our analysis, however, is now subject to a limitation fol-
lowing the Supreme Court’s decision in Martinez, where the
Court announced a “narrow exception” to its decision in Cole-
man by holding that:
Where under state law, claims of ineffective assis-
tance 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 ineffec-
tive.
Martinez, 132 S. Ct. at 1320 (emphasis added).
In acknowledging this “limited qualification” to the Cole-
man rule, the Supreme Court in Martinez reaffirmed the gen-
eral holding in Coleman: “that an attorney’s negligence in a
postconviction proceeding does not establish cause . . .
remains true except as to initial-review collateral proceedings
for claims of ineffective assistance of counsel at trial.” Id. at
1319 (emphasis added). In applying this standard, Martinez
made clear that a reviewing court must determine whether the
petitioner’s attorney in the first collateral proceeding was
ineffective under Strickland, whether the petitioner’s claim of
ineffective assistance of trial counsel is substantial, and
whether there is prejudice. Id. at 1321.
[6] For the purposes of our review in this case, therefore,
Martinez instructs that Sexton may establish cause for his pro-
SEXTON v. COZNER 5277
cedural default of his new ineffective assistance of trial coun-
sel claims, because the State of Oregon required Sexton to
raise them in a collateral proceeding, State v. Robinson, 550
P.2d 758 (Or. App. 1976).
B
We now look to the record to verify if the ineffective assis-
tance of PCR counsel claim is sufficiently worthy to merit
further consideration. To establish that PCR counsel was inef-
fective, Sexton must show that trial counsel was likewise inef-
fective, and that PCR counsel’s failure to raise trial counsel’s
ineffectiveness in the PCR proceeding fell below an objective
standard of reasonableness. If trial counsel was not ineffec-
tive, then Sexton would not be able to show that PCR coun-
sel’s failure to raise claims of ineffective assistance of trial
counsel was such a serious error that PCR counsel “was not
functioning as the ‘counsel’ guaranteed” by the Sixth Amend-
ment. Strickland, 466 U.S. at 687.
Here, we are satisfied that trial counsel was not ineffective.
Thus, there was no Strickland violation, no reason for Sex-
ton’s subsequent PCR counsel to pursue those additional
claims, and Sexton does not present a substantial claim that
trial counsel was ineffective.
To establish an ineffective assistance of counsel claim,
Sexton must show: (1) that counsel’s performance was defi-
cient; and (2) that the deficient performance prejudiced his
defense. Strickland, 466 U.S. at 687; Ben-Sholom v. Ayers,
674 F.3d 1095, 1100 (9th Cir. 2012). “To establish deficient
performance,” as the Supreme Court recently summarized in
Premo v. Moore, “a person challenging a conviction must
show that counsel’s representation fell below an objective
standard of reasonableness.” 131 S. Ct. 733, 739 (2011)
(internal citation and quotation marks omitted). We strongly
presume “that counsel’s representation was within the wide
range of reasonable professional assistance.” Id. To establish
5278 SEXTON v. COZNER
“prejudice,” a petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strick-
land, 466 U.S. at 694. “A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome.” Id.With Martinez’s “narrow exception” and the Strickland test
in mind, we turn to the record presently before us to deter-
mine if Sexton has established cause and prejudice by evalu-
ating Sexton’s new ineffective assistance of counsel claims.
1
Sexton argues that Kuhns failed to set forth an ineffective
assistance of counsel claim by Hadley, who allegedly
breached the attorney-client privilege when he disclosed to
the D.A. the confidential letter blaming his brother, and failed
to conduct a private polygraph examination before subjecting
Sexton to a polygraph administered by the State. Sexton
insists Hadley’s decisions were incompetent and prejudicial
because the sentencing judge relied on that information in
determining that Sexton’s sentences should run consecutively.2
We disagree.
[7] The record reveals that Hadley’s decision to proceed
with the State’s preferred polygrapher was a reasonable tacti-
cal decision that cannot form the basis of a claim for ineffec-
tive assistance of counsel. Strickland, 466 U.S. at 689. In an
affidavit prepared for the PCR proceedings, Hadley explained
that he “accepted Matthew’s recantation completely” when
his client stated he had not killed his parents. Further, because
2
At sentencing, the judge stated:
I’m not optimistic about this defendant’s likelihood of rehabili-
tation. In addition to the lack of remorse and regret, this defen-
dant also apparently was willing just a short time ago to deny any
responsibility for these crimes and, in fact, to falsely accuse his
younger brother of committing these heinous crimes.
SEXTON v. COZNER 5279
the D.A. in charge of Sexton’s case was elected to the Oregon
Circuit Court and was preparing to turn over his old position
to his deputy, Hadley felt that he had to seize the opportunity
quickly because he thought he had a better chance of convinc-
ing the outgoing D.A. to drop the charges against Sexton or
at least to mitigate the sentence. In so doing, he requested the
polygraph because he knew the outgoing D.A. would accept
a “pass” where other prosecutors might not. He agreed that
Sexton’s polygraph be administered by a member of the
Salem Police Department—who had on prior occasions
passed two of Hadley’s former clients, resulting in dismissal
of all charges or greater leniency in a plea bargain—in hopes
of achieving a similar result for Sexton. Further, Hadley
explained to Sexton that the results of the polygraph test were
not admissible as evidence in the State’s case-in-chief. As a
result, even though Sexton failed the polygraph, Hadley
informed Sexton that they could go to trial and “had a decent
chance to get him acquitted.” Sexton, however, “went back to
his original confession during his interview with [the] defense
psychologist.”
[8] Further, Hadley’s decision to give the D.A. the letter
from Sexton—where Sexton expressed he was innocent, and
that his brother, Brian Sexton, had in fact committed the
murders—was also strategic. The letter was protected from
use at trial by the State under the privilege surrounding state-
ments made during plea negotiations, see Or. Rev. Stat.
§ 135.435(1)(c) (“Any statement or admission made by the
defendant or the attorney of the defendant to the district attor-
ney and as a part of the plea discussion or agreement,” shall
not “be received in evidence for or against a defendant in any
criminal or civil action or administrative proceeding.”), and
could have swayed the D.A. to drop the charges against Sex-
ton or mitigate the punishment.
[9] As a result, given the extensive record before us on this
point, we fail to see how Hadley’s representation fell below
an objective standard of reasonableness. Premo, 131 S. Ct. at5280 SEXTON v. COZNER
739. In addition, because Sexton repeatedly vacillated
between guilt and innocence for the murders, he fails to show
that there is a reasonable probability that, but for Hadley’s
alleged unprofessional errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694.
Because Hadley’s performance was neither deficient nor
caused Sexton prejudice, it was not ineffective assistance of
counsel as defined in Strickland.
2
[10] Because the record before us regarding Hadley’s rep-
resentation is sufficiently complete for us to hold without hes-
itation that Hadley was not ineffective under Strickland, we
hold that PCR counsel, Kuhns, similarly could not have been
ineffective for failing to raise the ineffective assistance of
counsel claim in state court. Even without the “strong pre-
sumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” we conclude that Kuhns’s
representation of Sexton could not fall “below an objective
standard of reasonableness,” merely because he declined to
raise meritless claims that Hadley was ineffective. Strickland,
466 U.S. at 688.
[11] Because Sexton has not shown that Kuhns was inef-
fective, he has not shown cause to excuse his procedural
default, and therefore, has not shown that his case warrants
remand under Martinez. There may be cases where the record
is devoid of sufficient information necessary to evaluate
whether PCR counsel was ineffective and, as a result, remand
under Martinez would be necessary. However, due to the
extensive record already before us, that is not the case here.
Consequently, we hold that Sexton has not met the standard
of showing “cause and prejudice” under Martinez to excuse
the procedural default that otherwise bars his litigation of the
two new grounds to support his ineffective assistance of coun-
sel claim regarding Kuhns. If Hadley was not ineffective
before the plea, Kuhns could not have been ineffective on
SEXTON v. COZNER 5281
habeas appeal for failing to raise these two additional claims
at the PCR stage before the Oregon courts.
V
The advice provided by trial counsel with regard to Sex-
ton’s guilty plea was constitutionally adequate and Sexton’s
plea was knowing and voluntary as a result. Sexton knew at
the time he pled guilty that it was possible the sentences
would run consecutively.
[12] We deny Sexton’s Motion for a Limited Remand
because our reading of Coleman, in conjunction with Marti-
nez, leads us to the conclusion that, in light of the extensive
record before us regarding the two new claims for ineffective
assistance of counsel, Sexton cannot meet the “narrow cir-
cumstances” exception recognized in Martinez to show
“cause and prejudice.” Consequently, Sexton fails to over-
come the procedural bar under Coleman.
PETITIONER’S MOTION FOR A LIMITED REMAND IS
DENIED and THE DISMISSAL OF HIS FEDERAL HABEAS PETI-
TION IS AFFIRMED.