Moises Mendoza v. William Stephens, Director , 783 F.3d 203 ( 2015 )

Case: 12-70035 Document: 00512986573 Page: 1 Date Filed: 03/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-70035
FILED
March 30, 2015
Lyle W. Cayce
MOISES SANDOVAL MENDOZA, Clerk
Petitioner - Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:
We GRANT the motion for the appointment of new supplemental
counsel. We REMAND THIS CASE IN PART to the district court solely to
appoint supplemental counsel consistent with this opinion and the
requirements of 18 U.S.C. § 3599, and to consider in the first instance whether
the petitioner can establish cause for the procedural default of any ineffective-
assistance-of-trial-counsel claims pursuant to Martinez and Trevino that he
may raise, and if so, whether those claims merit relief. We retain jurisdiction
in the remainder of the case and STAY proceedings pending the conclusion of
the district court’s review.
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Judges Higginbotham and Southwick concur for the reasons stated in their
opinion in Speer v. Stephens, 13-70001.
2
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PRISCILLA R. OWEN, Circuit Judge, concurring:
I concur in the appointment of supplemental counsel, though I do not
join the panel majority’s truncated resolution of the issues. I write separately
to address arguments raised by Mendoza and the State that are not discussed
in the panel majority opinion and to set forth why I conclude that supplemental
counsel is necessary in this case.
In this proceeding under 28 U.S.C. § 2554, Moises Sandoval Mendoza
has appealed the district court’s denial of habeas relief. After Mendoza had
filed his initial brief in our court, the Supreme Court issued its decision in
Trevino v. Thaler. 1 Mendoza then moved for a stay of his appeal, requesting
that we remand to the district court for appointment of additional counsel. I
concur in the decision to grant the motion to stay and to remand to the district
court for further proceedings.
I
In April 2004, Mendoza was indicted for capital murder for intentionally
killing Rachelle Tolleson by strangling her with his hands and stabbing her
with a knife while committing or attempting to commit burglary, kidnapping,
and aggravated sexual assault of Tolleson. After speaking with Mendoza and
various members of his family, and considering the evidence against Mendoza,
which included DNA evidence and multiple confessions, his defense team
pursued a strategy of asserting that Mendoza was guilty of first-degree, but
not capital, murder. The jury convicted Mendoza of capital murder, and he
was sentenced to death in June 2005. His conviction and death sentence were
affirmed on direct appeal in 2008. 2
1 133 S. Ct. 1911 (2013).
2 Mendoza v. State, No. AP-75213, 2008 WL 4803471, at *28 (Tex. Crim. App. Nov. 5,
2008), cert. denied, 129 S. Ct. 2742 (2009).
3
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While Mendoza’s direct appeal was pending, Lydia Brandt was
appointed as Mendoza’s state habeas counsel. Mendoza filed an application
for a writ of habeas corpus in state court challenging his conviction and
sentence on seven grounds, 3 including assertions that he received ineffective
assistance of trial counsel in five respects. The Texas Court of Criminal
Appeals denied the application in 2009. 4
Brandt was subsequently appointed as Mendoza’s federal habeas counsel
and presented Mendoza’s seven state habeas claims in a habeas petition
submitted to the federal district court in June 2010. Mendoza filed an
amended petition in January 2011 and another in June 2011, both containing
substantially the same seven claims originally presented. The district court
permitted Mendoza to propound interrogatories to members of his trial defense
team but denied his motion for an evidentiary hearing. Following a report and
recommendation by a magistrate judge, the district court dismissed with
prejudice Mendoza’s claims unrelated to ineffective assistance of trial counsel
and denied his five ineffective-assistance-of-trial-counsel claims in September
2012. The district court did not decide whether the deferential standard of
review in 28 U.S.C. § 2254(d) applied, concluding that Mendoza’s claims failed
in any event.
Mendoza filed a motion to alter or amend the judgment, which the
district court granted in part and denied in part, but which still resulted in the
dismissal of Mendoza’s claims unrelated to ineffective assistance of trial
counsel, and judgment in favor of the Director of the Texas Department of
Criminal Justice, Correction Institutions Division (the Director). Mendoza
3 See Ex parte Mendoza, No. WR-70211-01, 2009 WL 1617814, at *1 (Tex. Crim. App.
Jun. 10, 2009).
4 Id.4
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filed a notice of appeal and an application for a certificate of appealability,
which was granted in December 2012 on Mendoza’s first four ineffective-
assistance claims.
While Mendoza’s appeal was pending in this court, the Supreme Court
decided Trevino v. Thaler, which held that its earlier decision in Martinez v.
Ryan—that the procedural default of a substantial claim of ineffective
assistance of trial counsel may be excused when the claim was not properly
presented at the first opportunity in state court due to the ineffective
assistance of state habeas counsel—applies to Texas state habeas
proceedings. 5 Mendoza subsequently moved to stay proceedings in this court
and requested that we remand to the district court with instructions to appoint
additional federal habeas counsel to investigate Brandt’s possible ineffective
assistance as state habeas counsel with regard to potential additional claims
that trial counsel provided ineffective assistance. After Mendoza filed his
motion, the Supreme Court decided Christeson v. Roper, in which the Court
held that Christeson, who had been sentenced to death, was entitled to
substitute federal habeas counsel who would not be laboring under a conflict
of interest. 6 Christeson’s original federal habeas counsel had missed the filing
deadline for Christeson’s first federal habeas petition and could not be expected
to argue that Christeson was entitled to equitable tolling of the statute of
limitations. 7
II
Mendoza, represented by Brandt, asserts that because Brandt served as
both his federal and state habeas counsel, Brandt has a conflict of interest in
5 Trevino, 133 S. Ct. at 1921.
6 Christeson v. Roper, 135 S. Ct. 891, 894-95 (2015) (per curiam).
7 Id.5
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light of the Supreme Court’s decisions in Christeson and Trevino. Mendoza
contends that Brandt was (and is) unable to conduct a sufficiently searching
review of her own possible ineffective assistance as state habeas counsel
because to do so, she would be required to assess whether she was ineffective
in representing Mendoza with respect to ineffective-assistance-of-trial-counsel
issues. Mendoza therefore requests that he be appointed additional counsel to
conduct a review to determine whether there are any ineffective-assistance-of-
trial-counsel claims that should have been, but were not, raised in the state
habeas proceedings.
Congress has provided by statute, 18 U.S.C. § 3599(a), that a state
defendant charged with committing a crime punishable by death is entitled to
counsel if he is or becomes financially unable to obtain adequate
representation. 8 This includes counsel in federal habeas proceedings. 9 It is
8 18 U.S.C. § 3599(a), which provides:
(a)(1) Notwithstanding any other provision of law to the contrary, in every
criminal action in which a defendant is charged with a crime which may be
punishable by death, a defendant who is or becomes financially unable to
obtain adequate representation or investigative, expert, or other reasonably
necessary services at any time either—
(A) before judgment; or
(B) after the entry of a judgment imposing a sentence of death but before
the execution of that judgment;
shall be entitled to the appointment of one or more attorneys and the
furnishing of such other services in accordance with subsections (b) through
(f).
(2) In any post conviction proceeding under section 2254 or 2255 of title 28,
United States Code, seeking to vacate or set aside a death sentence, any
defendant who is or becomes financially unable to obtain adequate
representation or investigative, expert, or other reasonably necessary services
shall be entitled to the appointment of one or more attorneys and the
furnishing of such other services in accordance with subsections (b) through
(f).
9 Id. § 3599(a)(2).
6
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undisputed that Mendoza is financially unable to obtain counsel and that he is
entitled to court-appointed counsel.
Although § 3599 “fails to specify how a court should decide” a motion for
appointment of new counsel, 10 the Supreme Court concluded in Martel v. Clair
that the “in the interests of justice” standard should apply in a case in which a
defendant sentenced to death in state court sought new counsel during federal
habeas proceedings. 11 The “in the interests of justice” standard is derived from
18 U.S.C. § 3006A, the provision that governs the appointment and
substitution of counsel in federal non-capital litigation. 12 In Martel, the State
of California had argued for a more stringent standard, contending that federal
courts may replace an appointed lawyer only if there is an actual or
constructive denial of counsel. 13 This would occur, the State posited, in only
three circumstances: “when the lawyer lacks the qualifications necessary for
appointment under the statute; when he has a ‘disabling conflict of interest’;
or when he has ‘completely abandoned’ the client.” 14 Accordingly, the State of
California conceded in Martel that actual or constructive denial of counsel
would occur if the attorney had a “disabling conflict of interest.”
In adopting the “in the interests of justice” standard, the Supreme Court
noted that “[h]abeas petitioners facing execution now receive counsel as a
matter of right, not [sic] an exercise of the court’s discretion” by virtue of
§ 3599(a)(2). 15 The enactment of § 3599 by Congress “‘reflec[ted] a
10 Martel v. Clair, 132 S. Ct. 1276, 1284 (2012).
11 Id.12 See id.13 Id.14 Id.15 Id. at 1285.
7
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determination that quality legal representation is necessary’ in all capital
proceedings to foster ‘fundamental fairness in the imposition of the death
penalty.’” 16
In the present case, the State of Texas argues, in essence, that Brandt is
an excellent attorney and that she has acted as an effective advocate for
Mendoza. The State contends that Mendoza has a functioning lawyer—
Brandt—and therefore that Mendoza’s motion for additional counsel should be
denied. The Supreme Court rejected similar arguments in Martel and
Christeson. 17 The Supreme Court reasoned that such an interpretation of
§ 3599 would render its substitution provision “superfluous.” 18 Importantly,
the Supreme Court observed that “[e]ven in the absence of that provision
[§ 3599], a court would have to ensure that the defendant’s statutory right to
counsel was satisfied throughout the litigation; for example, the court would
have to appoint new counsel if the first lawyer developed a conflict with . . . the
client.” 19 The Court concluded in Christeson that a conflict arises when an
attorney’s interest in protecting her professional reputation is at odds with her
duty to raise a claim of ineffective assistance. 20
Mendoza argues that Brandt may not be able to consider, recommend, or
carry out an appropriate course of action in reviewing her own performance as
state habeas counsel. In urging this court to appoint additional counsel for
16 Id. (quoting McFarland v. Scott, 512 U.S. 849, 855, 859 (1994)).
17 Christeson v. Roper, 135 S. Ct. 891, 894 (2015) (per curiam); Martel, 132 S. Ct. at
1286 (rejecting the contentions that “a court may not change counsel under § 3599 even if the
attorney-client relationship has broken down, so long as the lawyer has the required
qualifications and is ‘act[ing] as an advocate’” and that even when the relationship has
“broken down,” the “defendant retains a functioning attorney.” (alteration in original)).
18 Martel, 132 S. Ct. at 1286.
19 Id. (emphasis added).
20 Christeson, 135 S. Ct. at 894.
8
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Mendoza, Brandt asserted that if she were found by a federal habeas court to
have provided ineffective assistance of counsel in the state habeas proceedings,
such a finding would tend to affect negatively the prospect that she would be
appointed as counsel in other criminal cases or retained as counsel by other
defendants. Brandt observed in her arguments to this court that a finding that
state habeas counsel was ineffective may affect not only that counsel’s
professional reputation but her future earnings, as well.
From an objective observer’s viewpoint, Brandt’s loyalty to her client
reasonably appears to be adversely limited because of her own interests. In
other contexts, at least four Circuit courts have recognized that when state
habeas counsel was also trial counsel, an inherent conflict of interest is
present. 21
The State of Texas does not contend that Brandt does not have a conflict
of interest. Instead, the State argues that Mendoza has not pointed to any
ineffective-assistance-of-trial-counsel claim that Brandt should have raised,
but did not raise, in the state habeas corpus proceedings. This argument is
entirely circular. The State says that Mendoza cannot have conflict-free
21 See Bloomer v. United States, 162 F.3d 187, 192 (2d Cir. 1998) ("[W]e need not find
that appellate (or, by analogy, habeas) counsel was ineffective in failing to challenge the
quality of the representation that he had rendered at trial. Rather, we effectively excuse the
failure to raise that argument on appeal (or here on an initial § 2255 petition) due simply to
counsel's inherent conflict of interest."); Stephens v. Kemp, 846 F.2d 642, 651 (11th Cir. 1988)
("We find 'cause' for petitioner's failure to raise the ineffective assistance issue in his first
state habeas petition in the fact that petitioner's trial counsel, whose effectiveness is here
challenged, also represented him in the first state habeas proceeding."); Riner v. Owens, 764
F.2d 1253, 1257 (7th Cir. 1985) ("Since it would be most difficult if not professionally
awkward to require a lawyer to argue on appeal his own ineffectiveness . . . we conclude that
identity of trial and appellate counsel can constitute sufficient cause to meet the first element
of the cause and prejudice standard."); Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983)
("We are satisfied with Alston's excuse for failing to raise his ineffectiveness claim at trial
and on state appeal. The content of an appeal is heavily controlled by counsel, and where, as
here, the defendant's trial lawyer also prosecuted the appeal, it is obvious that ineffective
assistance of counsel is not likely to be raised at trial or to appear among the assignments of
constitutional error.").
9
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counsel unless conflicted counsel does what no court has thus far expected an
attorney to do, which is argue that she was ineffective in assisting her client.
Mendoza would be placed in the untenable position of being forced to rely on
appointed counsel to identify that counsel’s own failings, if any, and to contend
in federal court that her failings constituted ineffective assistance of habeas
counsel.
In the interests of justice, it is appropriate to appoint additional counsel
for Mendoza to determine whether, in new counsel’s professional judgment,
there are claims that should have been, but were not, raised in the state habeas
proceedings. It may well be that Brandt has actually been diligent and selfless
in her review of her representation of Mendoza in state habeas proceedings.
However, the interests of justice weigh in favor of appointing additional
counsel.
In Martel, the Supreme Court observed that the interests of justice
standard “contemplates a peculiarly context-specific inquiry.” 22 The Court
noted that, in reviewing a district court’s ruling on a motion to substitute
counsel, circuit courts generally consider factors that “include: the timeliness
of the motion; the adequacy of the district court’s inquiry into the defendant’s
complaint; and the asserted cause for that complaint, including the extent of
the conflict or breakdown in communication between lawyer and client (and
the client’s own responsibility, if any, for that conflict).” 23 In Christeson, the
Supreme Court reiterated that we must weigh the presence of a conflict
alongside the other Martel factors. 24 We are not reviewing a district court’s
22 132 S. Ct. at 1287.
23 Id.24 See Christeson, 135 S. Ct. at 894 (“The District Court here properly recognized that
its consideration of Christeson’s motion for substitution was governed by Clair’s ‘interests of
10
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ruling on a motion for substitution but instead are considering in the first
instance a motion to appoint additional counsel. But many of the same
considerations are relevant.
Clearly, Mendoza bears no responsibility for the fact that his appointed
federal habeas counsel also served as his state habeas counsel. As to the
timeliness of Mendoza’s motion, the State contends that Mendoza has waived
the right to seek conflict-free counsel by failing to raise the issue in the federal
district court. I disagree in light of the procedural posture of this case. The
federal district court appointed federal habeas counsel for Mendoza in June
2009, almost three years before the Supreme Court decided Martinez. 25 At the
time Brandt was appointed, the Supreme Court’s decision in Coleman v.
Thompson 26 governed. It held that an attorney’s errors or omissions in post-
conviction proceedings could not constitute cause to excuse a procedural
default in habeas proceedings. 27 Although the Supreme Court's decision in
Coleman had left open the question of whether ineffective assistance of state
habeas counsel in an initial-review proceeding might constitute cause to excuse
a procedural default of a claim that trial counsel provided ineffective
assistance, 28 until the Supreme Court issued its opinion in Martinez, this
circuit had consistently held that ineffective assistance of state habeas counsel
could not establish such cause. 29
justice’ standard. But its denial of his motion did not adequately account for all of the factors
we set forth in Clair.”).
25 Martinez v. Ryan, 132 S. Ct. 1309 (2012).
26 501 U.S. 722 (1991).
27 Id. at 752-54.
28 Id. at 755.
29See, e.g., Cantu v. Thaler, 632 F.3d 157, 166 (5th Cir. 2011); Woodfox v. Cain, 609
F.3d 774, 793 (5th Cir. 2010); Haynes v. Quarterman, 526 F.3d 189, 195 (5th Cir. 2008);
Matchett v. Dretke, 380 F.3d 844, 849 (5th Cir. 2004).
11
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In March 2012, in Martinez, the Supreme Court held that ineffective
assistance of state habeas counsel in failing to raise an ineffective-assistance-
of-trial-counsel claim could establish cause for the procedural default of such a
claim in states that required ineffective-assistance-of-trial-counsel claims to be
raised in state habeas proceedings rather than on direct appeal. 30 However,
our Circuit held thereafter in Ibarra v. Thaler 31 and other cases 32 that
Martinez did not apply to Texas habeas proceedings. Had Mendoza filed a
motion for additional counsel in federal district court, that court would have
been required by then-extant Fifth Circuit precedent to deny the motion. That
was the state of the law in this circuit at the time that the federal district court
entered judgment denying Mendoza's request for habeas relief in September
2012 and when the district court granted a certificate of appealability in
December 2012.
Mendoza pursued an appeal in this court and filed his initial brief on
May 22, 2013. Six days later, on May 28, 2013, the Supreme Court issued its
opinion in Trevino v. Thaler, 33 reversing our court and abrogating our decision
in Ibarra. The Supreme Court held in Trevino that Martinez did apply to Texas
habeas proceedings. 34
30 Martinez, 132 S. Ct. at 1320 (modifying Coleman to permit federal courts to excuse
the procedural default of a substantial claim of ineffective assistance of trial counsel when
(1) the claim was not properly presented in state court due to the ineffective assistance of
state habeas counsel, and (2) under state law, claims of ineffective assistance of trial counsel
must be raised in an “initial-review collateral proceeding,” rather than on direct appeal).
31 687 F.3d 222 (5th Cir. 2012).
32See, e.g., Haynes v. Thaler, 489 F. App’x 770, 772 (5th Cir. 2012); Foster v. Thaler,
481 F. App’x 229, 230 (5th Cir. 2012); Newbury v. Thaler, 481 F. App’x 953, 955 (5th Cir.
2012); Ayestas v. Thaler, 475 F. App’x 518 (5th Cir. 2012).
33 133 S. Ct. 1911 (2013).
34 Trevino, 133 S. Ct. at 1921.
12
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Mendoza filed a motion seeking appointment of conflict-free counsel 65
days after Trevino issued. While that motion could certainly have been filed
in our court much sooner after Trevino issued, it cannot be said that the
passage of 65 days resulted in a forfeiture or waiver. 35 Additionally, the
Supreme Court’s decision in Trevino is the controlling interpretation of federal
law and must be given full retroactive effect in all cases still open on direct
review. 36
The State argues that Mendoza’s motion should be denied because he
has not identified any aspect of his counsel’s performance in the state habeas
proceedings that even might have been ineffective in pursuing additional
ineffective-assistance-of-trial-counsel claims. The State points out that the
Supreme Court noted that the rule it adopted in Martinez was equitable in
nature, not constitutional, and the Court explained that in order “[t]o protect
prisoners with a potentially legitimate claim of ineffective assistance of trial
counsel, it is necessary to modify the unqualified statement in Coleman that
an attorney’s ignorance or inadvertence in a postconviction proceeding does not
qualify as cause to excuse a procedural default.” 37 In his motion for
appointment of additional counsel, Mendoza has not presented a “potentially
legitimate claim of ineffective assistance of trial counsel.” But this is not the
focus of the motion presently before us. We are not deciding at this juncture
whether there is cause to excuse default of a potentially legitimate ineffective
assistance of trial counsel claim. Mendoza argues only that he is entitled to
35Cf. Christeson v. Roper, 135 S. Ct. 891, 895 (2015) (per curiam) (“Christeson’s first
substitution motion, while undoubtedly delayed, was not abusive. It was filed approximately
a month after outside counsel became aware of Christeson’s plight and well before the State
had set an execution date, and it requested only 90 days to investigate and file a Rule 60(b)
motion.”).
36 Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993)
37 Martinez v. Ryan, 132 S. Ct.1315, 1319-20 (2012).
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conflict-free counsel to determine whether there is such a potentially
legitimate claim.
The State’s position ignores the fact that Mendoza is represented by
Brandt, and only Brandt, in the federal habeas proceedings at this juncture.
To accept the State’s argument would require Mendoza either to go forward
with counsel who has a conflict of interest or, acting pro se, to determine if
there were other ineffective-assistance-of-trial-counsel claims that Brandt
should have raised in the state habeas proceedings. 38 Mendoza is statutorily
entitled to conflict-free counsel at this stage in his habeas proceedings. 39
This approach also comports with Christeson. In that case, the Supreme
Court did not examine the merits of the petitioner’s potential equitable-tolling
claim. Rather, it determined that “grounds for substitution” exist when a
petitioner’s attorneys must raise arguments that are “directly and concededly
contrary to their client’s interest” in service of protecting “their own
professional and reputational interests.” 40
The Supreme Court also instructed that procedural obstacles faced by a
habeas petitioner must not preclude the appointment of substitute counsel
unless it is “plain that any subsequent motion that substitute counsel might
file on [petitioner’s] behalf would be futile.” 41 The State has not shown that
any motion substitute counsel might file on Mendoza’s behalf would be futile.
38 See generally Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013); Gray v. Pearson, 526
F. App’x 331 (4th Cir. 2013).
39 Id.; see also 18 U.S.C. § 3599(a).
40 Christeson, 135 S. Ct. at 895.
41 Id.14
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III
This court’s resolution of Mendoza’s motion is supported by decisions of
the Fourth Circuit. The first was an unpublished opinion in Gray v. Pearson, 42
in which state habeas counsel for Gray had also been appointed as his federal
habeas counsel. 43 After the Supreme Court’s decision in Martinez issued, Gray
sought appointment of additional counsel to investigate possible ineffective-
assistance-of-trial-counsel claims that had been missed due to habeas counsel’s
own ineffective assistance in the state habeas proceedings, and which had not
been initially raised in the federal habeas petition because federal habeas
counsel was the same as state habeas counsel. 44 The Fourth Circuit concluded
that “a clear conflict of interest exists in requiring Gray’s counsel to identify
and investigate potential errors that they themselves may have made in failing
to uncover [the] ineffectiveness of trial counsel.” 45 Because the petitioner’s
counsel were unable to identify, investigate, and present fully potential
Martinez claims, the court vacated the judgment of the district court and
remanded for further proceedings. 46
Subsequently, in Juniper v. Davis, 47 a published opinion, the Fourth
Circuit accepted and applied the reasoning from Gray. In Juniper, the court
concluded that “it [is] ethically untenable to require counsel to assert claims of
his or her own ineffectiveness in the state habeas proceedings in order to
42 526 F. App’x 331 (4th Cir. 2013).
43 Id. at 332.
44 Id. at 332, 334.
45 Id. at 334.
46 Id. at 335.
47 737 F.3d 288 (4th Cir. 2013).
15
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adequately present defaulted ineffective-assistance-of-trial-counsel claims
under Martinez in the federal habeas proceedings.” 48 The court continued:
To be clear, if a federal habeas petitioner is represented by the
same counsel as in state habeas proceedings, and the petitioner
requests independent counsel in order to investigate and pursue
claims under Martinez . . . qualified and independent counsel is
ethically required. A district court must grant the motion for
appointment of counsel without regard to whether the underlying
motion identifies a ‘substantial’ ineffective assistance claim under
Martinez. 49
The Fourth Circuit’s reasoning is persuasive when, as here, a state
defendant’s sole federal habeas counsel is the same as his state habeas
counsel. 50
IV
Pursuant to 28 U.S.C. § 2106, this court is authorized to “require such
further proceedings to be had as may be just under the circumstances.” 51 We
are staying the present appeal and remanding to allow the district court to
appoint additional counsel for Mendoza. This court is not deciding any other
issues at this time, including whether any new matters that additional counsel
might identify are barred by any provisions of AEDPA. Additionally, the court
48 Id. at 290.
49 Id.50 But see Fowler v. Joyner, 753 F.3d 446, 450 (4th Cir. 2014) (denying a motion, filed
while appeal was pending, for appointment of additional counsel and remand to the district
court “[b]ecause Fowler had the benefit of the qualified, independent counsel called for in
Juniper and he failed to raise any Martinez-based claims below.”).
51 28 U.S.C. § 2106, which provides:
The Supreme Court or any other court of appellate jurisdiction may
affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a
court lawfully brought before it for review, and may remand the cause and
direct the entry of such appropriate judgment, decree, or order, or require such
further proceedings to be had as may be just under the circumstances.
16
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is not determining at this juncture whether Brandt should continue as co-
counsel in the federal habeas proceedings.
17