James Hairston v. Al Ramirez ( 2018 )

FILED
NOT FOR PUBLICATION
DEC 24 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES H. HAIRSTON, No. 11-99012
Petitioner-Appellant, D.C. No. 1:00-cv-00303-BLW
v.
MEMORANDUM*
AL RAMIREZ, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted December 20, 2018**
Pasadena, California
Before: GRABER, RAWLINSON, and BYBEE, Circuit Judges.
James Hairston was convicted in Idaho of first degree murder and robbery
and sentenced to death. Following state post-conviction proceedings, Hairston
filed a federal petition for habeas corpus challenging his convictions and sentence
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
on several grounds, including ineffective assistance of counsel (“IAC”). The
district court dismissed his petition, concluding that, to the extent Hairston was
claiming that his trial counsel was ineffective in investigating and presenting
mitigation evidence, that claim was “procedurally defaulted” because it was not
raised in state court. The district court issued a Certificate of Appealability for
several of the dismissed claims, including the mitigation IAC claim.
While Hairston’s appeal was pending, the Supreme Court decided Martinez
v. Ryan, 566 U.S. 1 (2012), which held that “[i]nadequate assistance of counsel at
initial-review collateral proceedings may establish cause for [excusing] a
prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9.
At the State’s request, we ordered “a limited remand for reconsideration” of the
mitigation IAC claim “in light of Martinez.” On remand, the district court issued a
decision and order concluding that Hairston did not allege a claim of ineffective
assistance of trial counsel in investigating mitigation evidence, rendering Martinez
inapplicable. The district court denied a Certificate of Appealability on this issue.
We expanded the original Certificate of Appealability to include whether the
district court erred in “denying relief on the Martinez limited remand.” We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and our review is de novo. Murray
v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014).
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We conclude that Hairston has sufficiently alleged a claim of ineffective
assistance of trial counsel in investigating and presenting mitigation evidence at
sentencing. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1020–21 (9th Cir. 2001);
Selam v. Warm Springs Tribal Corr. Facility, 134 F.3d 948, 952 (9th Cir. 1998).
Hairston’s habeas petition claims that he was “denied . . . effective assistance of
counsel under the Sixth Amendment,” it references his trial counsel’s duty to
“conduct a complete and thorough investigation into [his] background,” and it
alleges facts that would have been uncovered “had such a mitigation investigation
been conducted.”
Moreover, throughout these proceedings—at least until the last round of
briefing before the district court—the State itself has acknowledged Hairston’s
mitigation IAC claim. In the original proceedings before the district court, the
State recognized Hairston’s claim that his “trial counsel’s mitigation investigation
was inadequate” and proceeded to argue the merits of that claim. And in this court,
the State requested a limited remand for the district court to consider in the first
instance whether Hairston “can show cause under Martinez” for excusing
procedural default on that claim. The State has thus waived any argument that
Martinez is inapplicable due to a pleading deficiency in Hairston’s habeas petition.
See, e.g., Wood v. Milyard, 566 U.S. 463, 473–74 (2012); Vang v. Nevada, 329
3
F.3d 1069, 1072–73 (9th Cir. 2003); see also Buck v. Davis, 137 S. Ct. 759, 780
(2017).
We therefore vacate the district court’s decision and order, and remand for
the district court to apply Martinez in the first instance to Hairston’s claim that his
trial counsel was ineffective in investigating and presenting mitigation evidence at
sentencing. In light of our disposition, we decline to reach Hairston’s other
arguments at this time. This panel will retain any future appeals in this case, and
the parties need not repeat briefing on the other issues except as necessary to
provide any additional factual or legal developments.
VACATED and REMANDED. Costs on appeal awarded to Petitioner-
Appellant.
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