FILED
NOT FOR PUBLICATION
OCT 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMAAR JEROME WILLIAMS, No. 14-16723
Petitioner-Appellant, D.C. No.
2:05-cv-00879-PMP-CWH
v.
JACKIE CRAWFORD; ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted September 15, 2016
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.
Petitioner Jamaar Jerome Williams appeals from the district court’s order
dismissing with prejudice several grounds for relief included in his second
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
amended federal habeas petition.1 The claims at issue concern ineffective
assistance of trial and appellate counsel. Because the district court applied the
wrong standard in determining that Williams procedurally defaulted these claims,
we vacate and remand for further proceedings.
1. Martinez v. Ryan, 132 S. Ct. 1309 (2012), governs whether we may
excuse Williams’s procedural default and reach the merits of his claims. Under
Martinez, a procedural default may be excused when the following four conditions
are met:
(1) the underlying ineffective assistance of . . . counsel claim is
“substantial”; (2) the petitioner was not represented or had ineffective
counsel during the [post-conviction relief (PCR)] proceeding; (3) the
state PCR proceeding was the initial review proceeding; and (4) state
law required (or forced as a practical matter) the petitioner to bring the
claim in the initial review collateral proceeding.
Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (en banc) (citing Trevino v.
Thaler, 133 S. Ct. 1911, 1918 (2013)); see also Nguyen v. Curry, 736 F.3d 1287,
1
At issue in this appeal are the claims Williams raised for the first time in his
second amended petition, Grounds for Relief Two and Three(a), (b), and (c).
These grounds encompass all but one of Williams’s claims of ineffective assistance
of trial and appellate counsel. The remaining claim (Three(d)), that Williams’s
appellate counsel was ineffective for failing to communicate with Williams or
provide him with his file, was adjudicated on the merits by the district court, along
with his claim that insufficient evidence supported his conviction. We do not
address the claims adjudicated on the merits here.
2
1293–96 (9th Cir. 2013) (extending Martinez to cases in which the underlying
ineffective assistance of counsel claim concerns appellate counsel).
The last three prongs of Martinez are clearly satisfied in this case. Williams
was unrepresented during his first state habeas proceeding.2 He therefore meets the
second requirement. Williams also satisfies the third and fourth prongs, as state
habeas proceedings are the “initial review proceedings” for claims of ineffective
assistance of trial and appellate counsel in Nevada, and Williams effectively was
required to bring his claims in those proceedings. See Rippo v. State, 122 Nev.
1086, 1095 (2006) (“Claims of ineffective assistance of trial or appellate counsel
are properly raised for the first time in a timely first post-conviction petition.”
(citing Pellegrini v. State, 117 Nev. 860, 882 (2001))).
2. Rather than decide in the first instance whether any of Williams’s claims
of ineffective assistance of trial and appellate counsel are “substantial” under
Martinez, and thus whether his procedural default should be excused, we remand
Williams’s case to the district court.
Remand is appropriate because Williams did not have the opportunity in the
district court fully to brief and develop a record supporting his claims under
Martinez. He alerted the district court that the Supreme Court had decided
2
Williams requested that counsel be appointed, but the court did not grant his
request.
3
Martinez while his case was pending and offered to provide additional briefing.
The State’s response to Williams’s notice of supplemental authority and
Williams’s subsequent reply further advised the district court that Martinez was
relevant to the issue raised in this case. Yet the district court did not request
supplemental briefing, hold an evidentiary hearing, or apply Martinez in
determining that Williams had procedurally defaulted Grounds Two and Three(a),
(b), and (c). We remand so that the district court can evaluate whether further
factual development is needed and determine whether Williams’s claims are
substantial under the appropriate standard. See Woods v. Sinclair, 764 F.3d 1109,
1137–38 (9th Cir. 2014), cert. denied sub nom. Holbrook v. Woods, 135 S. Ct.
2311 (2015).
Further counseling in favor of remand is intervening authority, which has
clarified the scope of Martinez as it applies here. See Dickens, 740 F.3d at 1321
(addressing the availability of an evidentiary hearing to show that a claim is
“substantial” under Martinez); Nguyen, 736 F.3d at 1289.
We therefore VACATE the district court’s order dismissing Williams’s
claims as procedurally defaulted and REMAND for further proceedings.
4