Martinez v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LUIS MARIANO MARTINEZ, 
Petitioner-Appellant,
No. 09-15170
v.
DORA SCHRIRO, Director of the  D.C. No.
2:08-cv-00785-JAT
Arizona Department of
OPINION
Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding

Argued and Submitted
January 11, 2010—San Francisco, California

Filed September 27, 2010

Before: J. Clifford Wallace, Procter Hug, Jr. and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Wallace

16487
16490 MARTINEZ v. SCHRIRO

COUNSEL

Robert Bartels, Esq., Tempe, Arizona, for petitioner-appellant
Luis Mariano Martinez.

John P. Todd, Esq., Deputy State Attorney General, Phoenix,
Arizona, for respondents-appellees Dora Schriro, et al.
 MARTINEZ v. SCHRIRO 16491
OPINION

WALLACE, Senior Circuit Judge:

Martinez, a prisoner in the custody of the Arizona Depart-
ment of Corrections, petitioned for a writ of habeas corpus.
Martinez alleges that he received ineffective assistance of
counsel at trial, but that his state-appointed appellate counsel
failed to raise this claim in the first state post-conviction relief
proceeding brought on his behalf. Martinez asserts a federal
constitutional right to the effective assistance of counsel in
connection with his state proceeding. He contends that the
right of an indigent defendant to the assistance of appellate
counsel is fundamentally a right to counsel in connection with
the presentation of a claim of error at the first tier of review.
Collateral review presented the first opportunity, under Ari-
zona law, at which Martinez could assert an ineffective-
assistance-of-trial-counsel claim. Martinez therefore reasons
that he has a right to the effective assistance of counsel in the
first post-conviction relief proceeding in which he could pre-
sent a claim of ineffective assistance by his trial counsel.

The district court had jurisdiction over Martinez’ habeas
petition pursuant to 28 U.S.C. §§ 2241(a) and 2254(a). The
district court denied the petition on the basis that it was proce-
durally defaulted. We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253(a). We affirm.

I.

Martinez is serving two consecutive terms of 35 years to
life, following his conviction for two counts of sexual conduct
with a person under the age of fifteen. With the assistance of
state-appointed counsel, Martinez pursued a direct appeal of
his conviction. The Arizona Court of Appeals affirmed Marti-
nez’ conviction, and the Arizona Supreme Court denied
review. On direct appeal, Martinez raised issues that are not
pertinent to our review of his federal habeas petition.
16492 MARTINEZ v. SCHRIRO
In May 2002, during the pendency of his direct appeal,
Martinez’ state-appointed appellate counsel initiated an Ari-
zona post-conviction relief proceeding on his behalf, pursuant
to Arizona Rule of Criminal Procedure 32.4.a, pursuant to
which a convicted defendant commences collateral review by
filing a “Notice of Post-Conviction Relief.” The defendant’s
claims are to be stated in a subsequent “petition.” See Ariz.
R. Crim. Pro. 32.4.c(2), 32.5; Ariz. R. Crim. Pro. Form 24(b).
Martinez asserts that his counsel filed the Notice of Post-
Conviction Relief, thereby initiating Rule 32 post-conviction
relief proceedings, without prior notice to him and without his
authorization.

Martinez’ counsel thereafter filed a statement in the Rule
32 action asserting that she had “reviewed the transcripts and
trial file and [could] find no colorable claims pursuant to Rule
32.” Cf. State v. Smith, 910 P.2d 1, 4 (Ariz. 1996) (explaining
that if “after conscientiously searching the record for error,
appointed counsel in a [post-conviction relief] proceeding
finds no tenable issue and cannot proceed, the defendant is
entitled to file a pro per PCR,” and counsel must so notify the
court and the client). In this same statement, counsel
requested that the court grant Martinez 45 days in which to
file a pro se petition in support of post-conviction relief. Mar-
tinez alleges that his counsel filed this statement without prior
notice to him and without his consent. He alleges that his
counsel also failed to advise him that he needed to file a pro
se petition. Martinez alleges that he did not file a petition
because his counsel “failed effectively to inform Petitioner
that he needed to file his own petition.” On April 28, 2003,
after time had expired for Martinez to file a petition, the trial
court dismissed the Rule 32 action for post-conviction relief.

On October 18, 2004, represented by new counsel, Marti-
nez filed a second “Notice of Post-Conviction Relief” in Ari-
zona Superior Court. Martinez filed a timely supporting
petition on February 7, 2005. This petition alleged that Marti-
nez’ trial counsel was ineffective in several respects, amount-
 MARTINEZ v. SCHRIRO 16493
ing to ineffective assistance of counsel in violation of his
Sixth and Fourteenth Amendment constitutional rights.

The Arizona Superior Court dismissed Martinez’ second
action for post-conviction relief as “precluded” under Arizona
Rule of Criminal Procedure 32.2.a and also as without merit.
Arizona Rule of Criminal Procedure 32.2.a(3) precludes a
defendant from receiving relief based upon any ground that,
inter alia, “has been waived at trial, on appeal, or in any pre-
vious collateral proceeding.” In effect, the Arizona Superior
Court deemed Martinez’ claims to be procedurally defaulted
because he had failed to raise them in his first Rule 32 action
for post-conviction relief. Martinez sought review in the Ari-
zona Court of Appeals. That court granted review, but denied
relief to Martinez on the basis that his claims were precluded.
Martinez sought further review by the Arizona Supreme
Court, which denied review without opinion.

Having exhausted the avenues of relief available in state
court, Martinez turned to the federal court. On April 24, 2008,
he filed the present action, petitioning for a writ of habeas
corpus pursuant to 28 U.S.C. §§ 2241(a) and 2254(a). Marti-
nez’ federal petition again asserted an ineffective-assistance-
of-trial-counsel claim. The district court denied Martinez’
petition as procedurally defaulted. The district court issued a
certificate of appealability, however, with respect to two
related issues: “1) whether Arizona’s procedural bar, as
applied to this case, is an adequate and independent state law
ground for denying relief; [and] 2) whether Petitioner has
shown cause to excuse his procedural default.”

II.

Martinez’ habeas petition is governed by 28 U.S.C. § 2254,
as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). When reviewing a petition for a writ
of habeas corpus, federal courts “will not review a question
of federal law decided by a state court if the decision of that
16494 MARTINEZ v. SCHRIRO
court rests on a state law ground that is independent of the
federal question and adequate to support the judgment.” Cole-
man v. Thompson, 501 U.S. 722, 729 (1991); see also Thomas
v. Goldsmith, 979 F.2d 746, 749 (9th Cir. 1992). This rule
applies to both substantive and procedural state law grounds.
Coleman, 501 U.S. at 729. The state law ground at issue in
this case is procedural.

In order to bar federal review, the state procedural rule
“must have been firmly established and regularly followed” at
the time of the purported procedural default. Fields v. Calde-
ron, 125 F.3d 757, 760 (9th Cir. 1997), quoting Ford v. Geor-
gia, 498 U.S. 411, 424 (1991) (internal quotation marks and
citation omitted); see also Wells v. Maass, 28 F.3d 1005, 1010
(9th Cir. 1994) (state procedural bar “must be clear, consis-
tently applied, and well-established at the time of the petition-
er’s purported default”). A state procedural rule may be
“inadequate” to preclude federal review, however, if it frus-
trates the exercise of a federal right. See Hoffman v. Arave,
236 F.3d 523, 531 (9th Cir.), cert. denied, 534 U.S. 944
(2001).

Where a habeas petitioner “has defaulted his federal claims
in state court pursuant to an independent and adequate state
procedural rule,” the federal courts may not review the peti-
tion, “unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750. To establish cause for a procedural
default, a petitioner must show that the default was due to an
“objective factor” that was “external” to him and could not
“fairly be attributed to him.” Id. at 753; see also Murray v.
Carrier, 477 U.S. 478, 488 (1986) (petitioner must show
“some objective factor external to the defense impeded coun-
sel’s efforts to comply with the State’s procedural rule”).
 MARTINEZ v. SCHRIRO 16495
We review the district court’s denial of Martinez’ petition
for writ of habeas corpus de novo. Leavitt v. Arave, 383 F.3d
809, 815 (9th Cir. 2004).

III.

The Arizona Court of Appeals concluded that Martinez’
ineffective-assistance-of-trial-counsel claim was procedurally
defaulted by application of Arizona Rule of Criminal Proce-
dure 32.2, which provides that a

defendant shall be precluded from relief under this
rule based upon any ground:

(1) Raiseable on direct appeal under Rule
31 or on post-trial motion under Rule 24;
(2) Finally adjudicated on the merits on
appeal or in any previous collateral pro-
ceeding; (3) That has been waived at trial,
on appeal, or in any previous collateral pro-
ceeding.

Ariz. R. Crim. Pro. 32.2. The district court concluded that this
state procedural rule was an “adequate and independent” basis
to bar federal habeas corpus review, and that there was not
cause and prejudice to excuse the default.

Martinez argues that the state procedural rule is not “ade-
quate and independent” to bar federal review because it would
frustrate the exercise of his federal constitutional right to the
effective assistance of counsel. He alleges that the perfor-
mance of his appellate counsel was constitutionally ineffec-
tive in connection with his first Rule 32 action. He contends
that the Arizona Court of Appeals ignored the inadequacy of
his appellate counsel, and that application of Arizona Rule of
Criminal Procedure 32.2.a frustrated his federal constitutional
right to the effective assistance of counsel.
16496 MARTINEZ v. SCHRIRO
Martinez’ allegation of ineffective assistance of appellate
counsel is central to this appeal. This allegation underpins
Martinez’ arguments as to both procedural default and “cause
and prejudice.” The ineffectiveness of appellate counsel, how-
ever, is a relevant and cognizable consideration in this appeal
only if Martinez possessed a federal constitutional right to the
assistance of counsel in the relevant proceeding for collateral
review.

A.

The Supreme Court has never recognized a federal consti-
tutional right to the assistance of counsel in collateral review
proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987) (“We have never held that prisoners have a constitu-
tional right to counsel when mounting collateral attacks upon
their convictions”), citing Johnson v. Avery, 393 U.S. 483,
488 (1969); see also Coleman, 501 U.S. at 755; Murray v.
Giarratano, 492 U.S. 1, 7-8 (1989). In several cases, we have
concluded that there is no federal constitutional right to coun-
sel in collateral proceedings, even where those post-
conviction proceedings constitute the first opportunity for a
criminal defendant to present an ineffective assistance of
counsel claim. See Ellis v. Armenakis, 222 F.3d 627, 633 (9th
Cir. 2000) (holding there is “no constitutional right to counsel
during state habeas proceedings even if that was the first
forum in which a defendant could challenge the constitutional
competence of counsel”); Bonin v. Calderon, 77 F.3d 1155,
1159 (9th Cir.), cert. denied, 516 U.S. 1143 (1996); Jeffers v.
Lewis, 68 F.3d 299, 300 (9th Cir.) (en banc), cert. denied, 515
U.S. 1187 (1995); Bonin v. Vasquez, 999 F.2d 425, 429 (9th
Cir. 1993).

In this case, nevertheless, Martinez asserts that he is enti-
tled to the effective assistance of counsel in connection with
his first state petition for post-conviction relief. He asserts that
a right to the assistance of counsel attaches to the presentation
of a claim of error at the first tier of review, relying upon Hal-
 MARTINEZ v. SCHRIRO 16497
bert v. Michigan, 545 U.S. 605 (2005) and Douglas v. Cali-
fornia, 372 U.S. 353 (1963). Martinez recognizes the general
rule that “there is no right to counsel in state collateral pro-
ceedings,” see Coleman, 501 U.S. at 755, but asserts that
there might be an exception where “state collateral review is
the first place a prisoner can present a challenge to his convic-
tion.” 501 U.S. at 755.

We begin by reviewing the cases that frame our decision.
On the one hand, the Court’s decisions in Halbert and Doug-
las recognized a federal constitutional right to counsel in con-
nection with a criminal defendant’s direct appeal from his
conviction (or the equivalent of direct appeal). On the other
hand, in Ross v. Moffitt, the Court declined to recognize a
right to counsel in connection with a criminal defendant’s
pursuit of second-tier review. 417 U.S. 600 (1974).

1.

[1] In Douglas, the Court recognized the right of an indi-
gent criminal defendant to the assistance of counsel in his first
appeal as of right in state court. 372 U.S. at 355-56; see also
Evitts v. Lucey, 469 U.S. 387, 396 (1985). The petitioners in
Douglas were two indigent defendants who had been jointly
tried and convicted in California. 372 U.S. at 353-54. They
requested, but were denied, the assistance of counsel on
appeal. Id. at 354. Under a California procedural rule, the
state intermediate appellate courts, upon receiving a indi-
gent’s request for counsel, would make an independent inves-
tigation of the record and determine if the appointment of
counsel would benefit the defendant or the courts. Id. at 354-
55. Under California’s system, in the Court’s estimation, the
type of appeal available to a criminal defendant hinged upon
whether or not he could afford counsel. If he could not, his
case was subjected to ex parte review on the merits without
benefit of any argument by counsel. Id. at 355-56. The appel-
late court would “prejudge the merits before it can even deter-
mine whether counsel should be provided.” Id. at 356. By
16498 MARTINEZ v. SCHRIRO
contrast, a criminal defendant who could afford counsel was
“not faced with the preliminary ‘ex parte examination of the
record,’ but had their arguments presented to the court in fully
briefed form.” Ross, 417 U.S. at 608, citing Douglas, 372
U.S. at 356.

[2] Douglas concluded that this was not a fair procedure:
“When an indigent is forced to run this gantlet [sic] of a pre-
liminary showing of merit, the right to appeal does not com-
port with fair procedure.” 372 U.S. at 357. In addition, the
Court determined that equal protection was being denied to
the poor: “where the merits of the one and only appeal an
indigent has as of right are decided without benefit of counsel,
. . . an unconstitutional line has been drawn between rich and
poor.” Id. Douglas dealt only with a defendant’s first state
appeal as a matter of right and did not concern the appoint-
ment of counsel “for the preparation of a petition for discre-
tionary or mandatory review beyond the stage in the appellate
process at which the claims have once been presented by a
lawyer and passed upon by an appellate court.” Id. at 356. In
later cases, the Court returned to consider these unanswered
questions.

In Ross, the Court declined to extend the right to counsel
beyond a defendant’s first appeal from his criminal convic-
tion. 417 U.S. at 618. In that case, the petitioners sought the
appointment of counsel for a second-tier discretionary appeal
to a state Supreme Court (there, North Carolina) and for cer-
tiorari review to the Supreme Court. Id. at 604. The Court
held that counsel need not be appointed for indigent defen-
dants pursuing discretionary appeals where those defendants
had been provided with appointed counsel in their first appeal.

In Ross, the Court recognized that Douglas appeared to
invoke both the fundamental fairness requirement of the Due
Process Clause and the Fourteenth Amendment’s equal pro-
tection guarantee. But Ross did not put much stock in the due
process rationale, observing that “there are significant differ-
 MARTINEZ v. SCHRIRO 16499
ences between the trial and appellate stages of a criminal pro-
ceeding.” Id. at 610. The purpose of trial “is to convert a
criminal defendant from a person presumed innocent to one
found guilty beyond a reasonable doubt,” while in the appel-
late process, a defendant seeks “not to fend off the efforts of
the State’s prosecutor but rather to overturn a finding of guilty
made by a judge or a jury below.” Id. This difference is sig-
nificant because, while a state may not dispense with the trial
stage without a defendant’s consent, the state “need not pro-
vide any appeal at all.” Id. at 611. Because of these differ-
ences, the Court reasoned, the question at issue was more
“profitably considered under an equal protection analysis.” Id.

Turning to the equal protection issue, the Court determined
that unfairness would result only “if indigents are singled out
by the State and denied meaningful access to the appellate
system because of their poverty.” Id. The Fourteenth Amend-
ment “does not require absolute equality or precisely equal
advantages.” Id. at 612, citing San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 24 (1973). The state has no duty to
duplicate “the legal arsenal that may be privately retained by
a criminal defendant . . . but only to assure [that an] indigent
defendant [had] an adequate opportunity to present his claims
fairly in the context of the State’s appellate process.” Id. at
616. The Court concluded that an indigent defendant was not
denied “meaningful” access to the state Supreme Court sim-
ply because the state did not appoint counsel to assist him in
seeking discretionary review. Id. at 615. At the stage of a
second-tier appeal, the criminal defendant would have already
received the assistance of counsel in connection with his first
appeal. Id. at 615, 616-17. Counsel’s work, supplemented by
a defendant’s pro se submissions, would provide the state
Supreme Court “with an adequate basis for its decision to
grant or deny review.” Id. An indigent was thus less handi-
capped by the denial of counsel for a discretionary appeal
than by the denial of counsel for an initial appeal as of right,
as considered in Douglas. Ross, 417 U.S. at 616.
16500 MARTINEZ v. SCHRIRO
[3] This conclusion was reinforced by looking to the role
of the North Carolina Supreme Court and the United States
Supreme Court. Id. at 615. The North Carolina Supreme
Court did not sit to correct the adjudication of guilt in individ-
ual cases, but rather reviewed cases where “the subject matter
of the appeal [had] significant public interest, . . . the cause
involves legal principles of major significance . . . , or . . . the
decision below [was] in probable conflict” with another deci-
sion of the court. Id. (internal citations and quotation marks
omitted). Likewise, review by the United States Supreme
Court “is discretionary and depends on numerous factors
other than the perceived correctness of the judgment [the
Court] is asked to review.” Id. at 616-17. In sum, the Court
concluded that the Constitution did not require the appoint-
ment of counsel to an indigent defendant seeking second-tier
review or other discretionary review. The Court stressed that
the right to the assistance of counsel on appeal extended only
to a first appeal.

2.

In Halbert, the Court evaluated the right to counsel in the
context of a Michigan law providing that criminal defendants,
if convicted by plea, could obtain review of their convictions
only by discretionary appeal. 545 U.S. at 609. The Michigan
law at issue provided that “an appeal by an accused who
pleads guilty or nolo contendere shall be by the leave of the
court.” Id., citing Mich. Const., art. 1 § 20. Pursuant to this
law, “several Michigan state judges began to deny appointed
appellate counsel to indigents convicted by plea.” Id. (internal
quotation marks and citation omitted). Halbert was indigent
and had been convicted of second-degree criminal sexual con-
duct pursuant to his plea of nolo contendere. Id. at 609, 614.
He requested the appointment of counsel to apply for leave to
appeal his conviction. Id. at 609. The state trial court and
intermediate appellate court denied Halbert’s request; the
Michigan Supreme Court denied review. Id.
 MARTINEZ v. SCHRIRO 16501
[4] Halbert’s appeal was framed by Douglas and Ross, and
Halbert characterized the issue before it as “essentially one of
classification: With which of those decisions should the
instant case be aligned?” Halbert, 545 U.S. at 616. The Court
determined that the case was governed by Douglas, highlight-
ing two reasons for its conclusion. Id. at 616-17. First, in
deciding whether to grant leave to appeal, the Michigan Court
of Appeals looked to the merits of the claim as set forth in an
application for leave to appeal. Id. at 617. Thus, like the peti-
tioners in Douglas, Halbert’s appeal was subject to ex parte
review without benefit of counsel’s argument, and, although
the appeal was “discretionary,” the Michigan Court of
Appeals sat in an “error-correction instance,” and not as the
Michigan Supreme Court. Id. at 617-620. Second, the Court
explained that “indigent defendants pursuing first-tier review
in the Court of Appeals are generally ill equipped to represent
themselves,” and without the assistance of counsel in prepar-
ing an application for leave to appeal, an indigent defendant
would be “disarmed in [his] endeavor to gain first-tier
review.” Id. at 617-18. Because a plea-convicted defendant
was only afforded the opportunity for review by discretionary
appeal, that discretionary appeal was the first, and likely the
only, direct review the defendant’s conviction and sentence
would receive. Id. at 619. The Court concluded that review of
an application for leave to appeal therefore “rank[ed] as a
first-tier appellate proceeding requiring the appointment of
counsel under Douglas.” Id. at 609. Thus, under the Michigan
system, Halbert was entitled to the assistance of counsel in
pursing the first discretionary appeal from his conviction.

[5] In the case before us, Martinez asserts a right to coun-
sel in collateral review insofar as that is the first opportunity
to obtain review of his ineffective-assistance-of-trial-counsel
claim. Under Arizona law, collateral review proceedings are
the first point at which an ineffective assistance of counsel
claim may be presented for review. State v. Spreitz, 39 P.3d
525, 527 (Ariz. 2002); cf. Lambright v. Stewart, 241 F.3d
1201, 1203-04 (9th Cir. 2001), cert. denied, 534 U.S. 1118
16502 MARTINEZ v. SCHRIRO
(2002). Therefore, Martinez’ initial Rule 32 action was the
first opportunity for him to obtain review of the effectiveness
of his trial counsel. Martinez argues that his claim is thus
comparable to that considered in Halbert and Douglas. He
makes three primary arguments: (1) collateral review pre-
sented “the first point (‘tier’) at which state law permitted
[him] to raise any ineffective-assistance-of-trial-counsel
claim,” (2) Arizona courts would review his ineffective-
assistance-of-trial-counsel claim asserted in the first post-
conviction relief proceeding on the merits, and (3) defendants
are “ill equipped to represent themselves in pursuing first-tier
review of such claims.”

B.

[6] We conclude that there is no federal constitutional right
to the assistance of counsel in connection with state collateral
relief proceedings, even where those proceedings constitute
the first tier of review for an ineffective assistance of counsel
claim.

[7] In this case, Martinez seeks to extend his right to coun-
sel to collateral proceedings. But the Court has never recog-
nized a right to counsel in collateral review. Moreover, the
Court has never extended the right to counsel beyond a defen-
dant’s first appeal. Beginning with Douglas, the Court recog-
nized that an indigent criminal defendant has the right to the
assistance of appointed counsel only “with the first appeal,
granted as a matter of right . . . from a criminal conviction.”
372 U.S. at 356. The Court has repeatedly declined to extend
the right to counsel beyond a criminal defendant’s first appeal
of his conviction. In Ross, the Court refused to extend a right
to counsel to second-tier or certiorari review. 417 U.S. at 615-
17. And in Finley, the Court declined to recognize a constitu-
tional right to counsel in collateral proceedings, observing
that “[o]ur cases establish that the right to appointed counsel
extends to the first appeal of right, and no further.” 481 U.S.
at 555.
 MARTINEZ v. SCHRIRO 16503
A general right to counsel on collateral review cannot be
extrapolated from Halbert and Douglas. The more difficult
question, however, is whether collateral review might consti-
tute the “first tier” of review for a petitioner’s ineffective-
assistance-of-trial-counsel claim, and thus be sufficient to
give rise to a right to counsel. That is, if collateral review
entails a determination on the merits of an ineffective assis-
tance of counsel claim, can collateral review represent the
first opportunity for a criminal defendant to obtain review of
his conviction, such that Martinez is similarly situated to a
defendant pursuing his first appeal as of right? We now turn
to this important question.

1.

Halbert recognized a right to counsel in certain “discretion-
ary” proceedings. The appellate procedure at issue there was
effectively the only means of direct review available to the
petitioner. Without the aid of counsel in that discretionary
appeal, a plea-convicted defendant would be frustrated in
attempting to obtain direct review of his conviction. The
appeal procedure at issue in Halbert was “discretionary,” but
was nevertheless equivalent to direct review. Ross, although
it pertained to “discretionary” appeal procedures, was not
analogous.

[8] This case is more like Ross than Halbert. In Ross, the
petitioner had already received direct review of his convic-
tions, and had already received the assistance of counsel in
connection with that first appeal. Likewise, here, Martinez has
already received direct review of his conviction and received
the assistance of counsel in connection with that appeal. In
Halbert, by contrast, the petitioner sought the functional
equivalent of direct review, the first appeal of his conviction.
Even if collateral review presents the first tier of review for
Martinez’ ineffective assistance of counsel claim, we con-
clude that Martinez’ action is not analogous to a direct appeal
— or the first opportunity for him to obtain review of his con-
16504 MARTINEZ v. SCHRIRO
viction — so as to entitle him to effective counsel. We there-
fore conclude that Martinez’ case is not governed by Douglas
and Halbert.

2.

Martinez asserts that a pro se defendant is “ill equipped” to
represent himself in collateral proceedings. But this general
assertion does not sway us. Indeed, the assistance of counsel
would aid any indigent defendant in pursuing review of his
conviction, whether by first-tier or second-tier appeal, or by
collateral review. Ross, 417 U.S. at 616. Of relevance here,
Martinez faces a lesser handicap in pursuing collateral review
than a defendant pursuing a first appeal, as in Douglas and
Halbert. Martinez has already received the assistance of
appellate counsel in a prior proceeding, like the petitioner in
Ross.

In Ross and Halbert, the Court observed that a defendant’s
handicap on second-tier appeal is far less than the relative
handicap borne by the indigent defendant denied counsel in
his first appeal as of right. Ross, 417 U.S. at 616; Halbert, 545
U.S. at 619. A defendant seeking second-tier review will have
received the assistance of counsel in connection with direct
review, and would have “at the very least, a transcript or other
record of trial proceedings, a brief on his behalf in the Court
of Appeals setting forth his claims of error, and in many cases
an opinion by the Court of Appeals disposing of his case.”
Ross, 417 U.S. at 615.

[9] Ross’s and Halbert’s analyses of second-tier review
applies to the context of collateral review presented in this
case. Collateral review is more like a second-tier appeal than
a first-tier appeal as of right. Collateral review and direct
review are not on equal footing where, as here, a defendant
has already benefitted from the assistance of counsel in a
direct appeal. In collateral review proceedings, Martinez does
not face the same burden and disadvantages as a defendant
 MARTINEZ v. SCHRIRO 16505
pursuing direct review without the assistance of counsel. Even
though collateral proceedings might provide the first tier of
review for a particular claim, Martinez has already benefitted
from the assistance of counsel in his first appeal.

3.

[10] Martinez asserts that collateral review of his ineffec-
tive assistance of counsel claim involves a determination on
the merits. But this case does not involve a determination on
the merits in the same way as Halbert and Douglas. In Doug-
las, the state intermediate appellate court reviewed the merits
of a case in deciding whether to appoint counsel for direct
review. The merit of petitioners’ cases was reviewed ex parte
and without benefit of briefing and argument from counsel. In
Halbert, the state’s intermediate appellate court likewise per-
formed a gatekeeping function by reviewing applications for
leave to pursue discretionary appeal independently, looking to
the merits of a case as presented in the application. In such
situations, without the assistance of counsel, most indigent
defendants would be thwarted in their attempts to obtain
review of their convictions. In the case before us, however,
there is no impediment to the first tier of appeal; that has
already been provided to Martinez. The court performs no
gatekeeping function that would bar Martinez from presenting
his ineffective assistance of counsel claim (for example, an ex
parte review of the merits).

[11] Looking to a related point, as set forth above, Ross
explained that first- and second-tier appeals generally serve
different purposes. In a direct criminal appeal, a court sits to
correct erroneous adjudication of guilt in an individual case.
By contrast, discretionary appeal to a state Supreme Court or
to the United States Supreme Court is not intended to correct
error in individual cases, but rather to address questions of
public importance, critical issues of law, conflicts in the deci-
sions of relevant courts, and so forth. Likewise, collateral
review also does not provide a function analogous to direct
16506 MARTINEZ v. SCHRIRO
review. In Finley, the Court explained that a defendant could
have no right to counsel in a collateral attack upon his convic-
tion, as he had no right to counsel in discretionary second-tier
review pursuant to Ross. Finley, 481 U.S. at 555. The Court
reasoned: “[p]ostconviction relief is even further removed
from the criminal trial process than is discretionary direct
review. It is not part of the criminal proceeding itself, and it
is in fact considered to be civil in nature.” Id. at 556-57. In
collateral review, the courts do not perform an error correc-
tion function analogous to an appellate court hearing a crimi-
nal defendant’s direct appeal as of right from his conviction.

4.

[12] Our conclusion is confirmed by returning to the
Douglas decision. Douglas established the principles on
which a right to appellate counsel could be recognized. Doug-
las stated both a due process rationale and an equal protection
rationale. Neither supports Martinez’ claim.

[13] The due process rationale does not fit here. In Ross,
the Court explained that the function of trial and appeal are
vastly different. As we have already set forth, Ross explained
that trial serves to convert an accused person to the status of
convicted, and may not be eliminated without a defendant’s
consent. A state, however, has no duty to provide for the
appeal of a criminal conviction, and a state similarly has no
duty to provide for collateral review. Finley, 481 U.S. at 557.

[14] The equal protection rationale is also inapplicable in
this case. Equal protection requires that the state appellate
system be “free of unreasoned distinctions, . . . and that indi-
gents have an adequate opportunity to present their claims
fairly within the adversary system,” but the equal protection
guarantee does not require the elimination of economic dis-
parities. Ross, 417 U.S. at 612. Instead, “[a]bsolute equality
is not required; lines can be and are drawn and we often sus-
tain them.” Id. at 608 (internal quotation marks omitted), cit-
 MARTINEZ v. SCHRIRO 16507
ing Douglas, 372 U.S. at 356-57; see also id. at 612
(“Fourteenth Amendment does not require absolute equality
or precise legal advantages” and it does not require the state
to “equalize economic conditions”) (internal quotation marks
and citations omitted). Martinez advances no argument
grounded in the rationale of equal protection, and we discern
no equal protection concern in this case.

[15] In sum, the Court has repeatedly held that there is no
right to counsel in collateral proceedings. The Court has never
held that a right to counsel necessarily adheres at every “first
tier” of review. Martinez’ position rests on a shaky legal argu-
ment that we should recognize an exception to the general
rule that there is no right to counsel in collateral review. But
this exception would swallow the general rule, see Bonin v.
Calderon, 77 F.3d at 1160, and we will not adopt it.

C.

[16] We do not review the merits of a habeas petition
where the state court decision “rests on a state law ground that
is independent of the federal question and adequate to support
the judgment.” Coleman, 501 U.S. at 729. A state procedural
rule is not adequate to bar federal review if that “state proce-
dural rule frustrates the exercise of a federal right.” Hoffman,
236 F.3d at 531. Martinez argues that Arizona Rule of Crimi-
nal Procedure 32.2 is not an adequate basis on which to deny
federal review, because application of that procedural rule
would frustrate the protection of his federal rights. Martinez’
argument that Arizona Rule of Criminal Procedure 32.2 is
inadequate to bar federal review is dependent upon his posi-
tion that he has a federal constitutional right to counsel in col-
lateral proceedings.

[17] In this case, Arizona Rule of Criminal Procedure 32.2
is an adequate and independent basis to support the state court
judgment. We have held that there is no right to the assistance
of counsel in collateral review proceedings, even where those
16508 MARTINEZ v. SCHRIRO
proceedings constitute a first tier of review under the facts of
this case. Martinez’ contention that Arizona Rule of Criminal
Procedure 32.2 is inadequate to bar federal habeas review
therefore fails. Review of Martinez’ habeas petition by the
federal courts will be procedurally barred unless he can show
cause and prejudice to excuse his default. We now turn to that
issue.

IV.

Where a habeas petitioner “has defaulted his federal claims
in state court pursuant to an independent and adequate state
procedural rule,” the federal courts may not review the peti-
tion “unless the prisoner 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. Martinez asserts that there may be cause and
prejudice to excuse any procedural default “if Petitioner could
show that first post-conviction counsel was unconstitutionally
ineffective.”

[18] We have already concluded that there is no right to
the assistance of post-conviction counsel in connection with
a state petition for post-conviction relief, such as Martinez
asserts in this case. Without a right to the appointment of
counsel, there can be no right to the effective assistance of
counsel. Id. at 752 (“a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings”); see
also Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (per
curiam) (where there is no constitutional right to counsel there
can be no deprivation of effective assistance). Ineffective
assistance of post-conviction counsel cannot provide cause to
excuse procedural default. Manning v. Foster, 224 F.3d 1129,
1133 (9th Cir. 2000); Custer v. Hill, 378 F.3d 968, 974 (9th
Cir. 2004) (“Any ineffectiveness of [his] attorney in the post-
conviction process is not considered cause for the purposes of
 MARTINEZ v. SCHRIRO 16509
excusing the procedural default” (internal quotation marks
omitted)). Martinez’ claims are procedurally barred.

AFFIRMED.