Lopez v. Ryan

FILED
FOR PUBLICATION MAY 15 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SAMUEL VILLEGAS LOPEZ, No. 12-99001

Petitioner - Appellant, D.C. No. 2:98-cv-00072-SMM

v.
OPINION
CHARLES L. RYAN; RON CREDIO,
Warden, Arizona State Prison - Eyman
Complex,

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

Before: GRABER, McKEOWN, and CALLAHAN, Circuit Judges.

Opinion by Judge McKeown

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 federal 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 postconviction

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 seeking

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 ineffective 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”)

counsel 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.

We conclude that the district court did not abuse its discretion in denying the

Rule 60(b) motion. Further, Martinez requires Lopez to show that the defaulted

claim is a substantial one. Because Lopez has not done so, we conclude, in the

alternative, that he fails to meet the necessary threshold under Martinez. To

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understand our decision, it is important to outline Martinez, to clarify the scope of

Lopez’s claims in federal court, and to benchmark Lopez’s claim against the

evidence.

D ISCUSSION
I. Martinez v. Ryan

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 proceeding.” 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 recognizing 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.

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 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:

[W]hen a State requires a prisoner to raise an ineffective-assistance-
of-trial-counsel claim in a collateral 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 ineffective under the standards of Strickland v.
Washington, 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 substantial 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 sentencing counsel was ineffective by

failing to provide the psychiatric 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

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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 witnesses to support his tentative diagnosis of
pathological intoxication. In contrast, the claim as alleged in [the
district court was] counsel’s failure to conduct a comprehensive
investigation of [Lopez’s] background so that the expert could provide
a complete and thorough assessment of [Lopez’s] cognitive
functioning, as well as any psychological conditions, addictive
diseases, or neurological deficits, 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 framing 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.

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 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 consider 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 concluded that Lopez did not deserve a death sentence.” Id. at 1209.

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 relevant 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

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district court concluded that, if our previous ruling was on the merits, then Lopez’s

motion should be dismissed “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

circumstances sufficient to reopen judgment in this case.” To determine whether

Martinez constitutes the necessary extraordinary circumstance to obtain relief

under Rule 60(b), the district 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 appeal under two alternate approaches. Both lead to the same

conclusion.

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 A. Phelps Analysis

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

circumstances’ justifying the reopening of a final judgment.”). Phelps sets out six

factors that may be considered, among others, 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 Gonzalez, 545 U.S. at 536-38, appellate courts may, in their

discretion, 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 conduct 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

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F.3d 1039, 1043 (9th Cir. 2007) (holding that we review the district court’s Rule

60(b) analysis 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

petitioner’s claim on statute-of-limitations grounds. But other circuits had

disagreed with the Eleventh Circuit’s “unduly parsimonious interpretation of

§ 2244(d)(2).” Id. In that light, the Court held that “[i]t is hardly extraordinary

that subsequently, 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 federal 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 effectiveness was irrelevant to establishing cause for

procedural default. Coleman v. Thompson, 501 U.S. 722 (1991). In Martinez, 132

S. Ct. at 1315, however, the Supreme Court “qualifie[d] Coleman by recognizing a

narrow exception.” In our view, these circumstances weigh slightly in favor of

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reopening Lopez’s habeas case. Unlike the “hardly extraordinary” development of

the Supreme Court resolving an existing circuit split, Gonzalez, 545 U.S. at 536,

the Supreme Court’s development in Martinez constitutes a remarkable—if

“limited,” 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 proceedings. 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 pursued the theory that he now

advances. In fact, his theory during his federal proceedings was that his PCR

counsel had been diligent in developing his IAC claim. That theory is 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

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precedents—Lopez pointed to the State’s conduct, not alleged ineffectiveness of

his PCR counsel. 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, especially 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 connection between

Lopez’s case and Martinez. Id. at 1138-39. In Phelps, “the intervening change in

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 original
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.

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the law directly overruled the decision for which reconsideration [had been]

sought.” Id. at 1139. We held that that fact supported reconsideration. Id.

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 petitioner’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 separate 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

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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 previous 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.

In sum, the equitable factors described above provide little overall support

for reopening Lopez’s case. We recognize that one could weigh the six factors

differently and, in 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

The parties take different views as to the scope of Martinez. We need not

decide whether Martinez is limited to procedural 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

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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

Martinez.

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 ineffective 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 history that were necessary for a proper

diagnosis,” Lopez, 630 F.3d at 1204, it would have given the doctor the basis to

provide a more definitive opinion on Lopez’s cognitive functioning, 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 regarding his background and

its claimed impact on his diagnosis. That evidence was before this court in the first

appeal.

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 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

supplemental 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

sentencing judge. Rather, his claim is confined to claimed deficiencies in

providing further information to his expert. Viewed in the way he frames it, the

claim cannot be considered substantial, 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 12 (9th Cir. May 14,

2012) (quoting Martinez, 132 S. Ct. at 1318). To have a legitimate IAC claim a

petitioner must be able to establish both deficient representation 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

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counsel was ineffective, [Lopez] must show that trial counsel was likewise

ineffective . . . .” Sexton, op at 17.

On appeal from denial of his habeas petition, Lopez dedicated much of his

opening brief to detailing his chaotic, violent 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).

The record is full of evidence of the depravity and brutal nature of the crime.

The evidence at trial shows that there was a tremendous
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 discovered 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.

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

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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 prejudice, we take into account the reasons

for imposing the death penalty. Even accepting and reviewing de novo Lopez’s

late-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 appealability should have issued.

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 C OUNSEL

Kelly J. Henry, AFPD-Capital Habeas Federal Public Defender’s Office,
Nashville, Tennesse, for Appellant-Petitioner.

Susanne Bartlett Blomo, Arizona Attorney General’s Office, Phoenix,
Arizona, for Respondents-Appellees.

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