Ricky Jovan Gray v. Eddie L. Pearson , 526 F. App'x 331 ( 2013 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-5
    RICKY JOVAN GRAY,
    Petitioner - Appellant,
    v.
    EDDIE L. PEARSON, Warden, Sussex I State Prison,
    Respondent - Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria.    Anthony John Trenga,
    District Judge. (1:11-cv-00630-AJT-TCB)
    Argued:    May 15, 2013                      Decided:   June 7, 2013
    Before DAVIS, WYNN, and DIAZ, Circuit Judges.
    Vacated and remanded by unpublished order. Judge Davis directed
    entry of the order with the concurrence of Judge Wynn and Judge
    Diaz.
    ARGUED: Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRESENTATION
    RESOURCE CENTER, Charlottesville, Virginia, for Appellant.
    Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
    VIRGINIA,   Richmond,  Virginia,  for  Appellee.    ON   BRIEF:
    Johnathan P. Sheldon, SHELDON & FLOOD, PLC, Fairfax, Virginia,
    for Appellant.    Kenneth T. Cuccinelli, II, Attorney General,
    Richmond, Virginia, for Appellee.
    ___________________
    O R D E R
    ___________________
    Petitioner Ricky Gray was convicted of capital murder in
    the commission of a robbery or attempted robbery, capital murder
    of more than one person as part of the same transaction, capital
    murder of more than one person, and two counts of capital murder
    of a person under the age of fourteen by a person age twenty-one
    or older. The jury found the aggravating factor of vileness and
    sentenced Gray to death on the two counts of capital murder of a
    person   under   the    age   of   fourteen    by    a     person   twenty-one   or
    older,    and    life     imprisonment        on     the       remaining   capital
    convictions.
    On June 8, 2007, the Virginia Supreme Court affirmed Gray’s
    convictions and sentence. Gray v. Commonwealth of Virginia, 
    645 S.E.2d 448
     (Va. 2007), cert. denied, 
    552 U.S. 1151
     (2008). On
    March 14, 2008, Gray filed a timely Petition for Writ of Habeas
    Corpus in the Virginia Supreme Court, asserting ten distinct
    claims of ineffective assistance of his trial counsel. Gray was
    appointed   counsel     to    represent    him      in   the    state   collateral
    proceedings. Ultimately, the Virginia Supreme Court granted in
    part (vacating one of the life sentences) and dismissed in part
    Gray’s Petition. Gray then sought federal habeas relief pursuant
    to 
    28 U.S.C. § 2254
     in the Eastern District of Virginia. The
    2
    district court appointed the same attorneys who had represented
    Gray in the state habeas proceedings to represent him in his
    federal habeas proceedings.
    The district court denied all relief, and Gray filed an
    appeal of that decision on August 29, 2012. The district court
    issued      a   certificate       of   appealability          on     the     two    claims
    currently       before    this    Court:     (1)    whether        the    resolution      of
    disputed issues of fact by the Supreme Court of Virginia, based
    on conflicting sworn declarations without an evidentiary hearing
    or an opportunity to create a record through discovery, resulted
    in a decision that was based on an unreasonable determination of
    fact    under     28     U.S.C.    2254(d)(2);        and    (2)    whether        Gray    is
    entitled to the appointment of independent counsel under the
    holding of the United States Supreme Court in Martinez v. Ryan,
    
    132 S. Ct. 1309
         (2012),     which     was    handed      down     during       the
    pendency of Gray’s federal habeas proceedings. For the reasons
    set    forth    below,     we    conclude    that     Gray   was     entitled       to    the
    appointment       of     independent        counsel     in    his        federal    habeas
    proceeding. Accordingly, we vacate the judgment and remand for
    further proceedings, deferring consideration of his first claim.
    Gray’s current counsel in these federal habeas proceedings
    served as his counsel in state habeas proceedings, as well. He
    argues before us, as he argued before the district court, that
    under the reasoning and holding of Martinez, he is entitled to
    3
    counsel who could vigorously examine and present if available
    potential claims of ineffective assistance by those very counsel
    in his state habeas proceedings. We agree that this is a correct
    reading of Martinez.
    It is well settled that a federal habeas court is generally
    unable       to    review      a     federal     constitutional          claim    that    was
    “procedurally defaulted” due to the defendant’s failure to raise
    the claim in accordance with state law requirements. Richmond v.
    Polk, 
    375 F.3d 309
    , 322 (4th Cir. 2004); Monroe v. Angelone, 
    323 F.3d 286
    , 297 n.16 (4th Cir. 2003). This is so because the
    judgment in such a case is based on an “independent and adequate
    state     ground”         with      which    federal      habeas     courts       will    not
    interfere. Coleman v. Thompson, 
    501 U.S. 722
    , 729-30 (1991).
    However, a procedurally defaulted claim can be reviewed by a
    federal habeas court if the prisoner can establish “cause” for
    the default, and “prejudice” from a violation of federal law.
    Wainwright v. Sykes, 
    433 U.S. 72
    , 87 (1977).
    The     Supreme      Court      had     previously    held     in    Coleman       that
    because      a    habeas       petitioner      has   no    constitutional         right    to
    counsel           in      state         post-conviction             proceedings,          the
    ineffectiveness           of       post-conviction        counsel     cannot      establish
    “cause” to excuse a procedural default. Coleman, 
    501 U.S. at 757
    .     The      Court     established        an    exception      to     that    rule    in
    Martinez.
    4
    In      Martinez,      the     Supreme          Court    considered     “whether     a
    federal   habeas     court       may    excuse       a    procedural     default   of   an
    ineffective-assistance           claim       when    the    claim   was   not   properly
    presented     in   state   court       due     to    an     attorney’s    errors   in   an
    initial-review collateral proceeding.” Martinez, 
    132 S. Ct. at 1313
    .   The    Court    coined         the    term       “initial-review     collateral
    proceeding” to describe the situation where a state makes the
    state   collateral      proceedings           the    first     instance    in   which   a
    prisoner can bring an ineffective assistance of trial counsel
    challenge. 
    Id. at 1315
    . In states that have such a requirement,
    the initial-review collateral proceeding is a “prisoner’s ‘one
    and only appeal’ as to an ineffective-assistance claim . . . .”
    
    Id.
     (quoting Coleman, 
    501 U.S. at 756
    ). This reality led the
    Martinez Court to hold that
    [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 . .
    . 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).
    Martinez, 
    132 S. Ct. at 1318
    . In order to overcome the default,
    the Martinez Court went on to hold, the “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.
    5
    Thus, the Court established an exception to Coleman, and
    concluded that federal habeas courts can find “cause” to excuse
    a procedural default where
    (1) the claim of ‘ineffective assistance of trial
    counsel’ was a ‘substantial’ claim; (2) the ‘cause’
    consisted of there being ‘no counsel’ or only
    ‘ineffective’ counsel during the state collateral
    review proceeding; (3) the state collateral review
    proceeding was the ‘initial’ review proceeding in
    respect   to    the   ‘ineffective-assistance-of-trial-
    counsel claim’; and (4) state law requires that an
    ‘ineffective assistance of trial counsel [claim] . . .
    be raised in an initial-review collateral proceeding.’
    Trevino v. Thaler, No. 11–10189, 
    2013 WL 2300805
    (May 28, 2013)
    (slip. op., at 8) (quoting Martinez, 
    132 S. Ct. at 1318
    ).*
    Virginia     requires      prisoners         to    bring    ineffective-
    assistance-of-trial-counsel claims, for the first time, in state
    collateral proceedings. Johnson v. Commonwealth, 
    529 S.E.2d 769
    ,
    781 (Va. 2000). Because of this, Gray contends that Martinez is
    applicable   to   his   case,    and       that   his   unique   circumstance
    requires the appointment of new counsel to enable him to fully
    investigate any available Martinez claims.
    *
    In Trevino, the Supreme Court elaborated on and expanded
    the Martinez exception, explaining that it is applicable not
    only in circumstances where a state requires a defendant to
    initially raise an ineffective-assistance-of-trial-counsel claim
    in a state collateral proceeding, but also when a state, as the
    Court found was the case in Texas, maintains a procedural regime
    that amounts to such a requirement, i.e., when it is “virtually
    impossible” for an ineffective assistance claim to be raised on
    direct review. Trevino, slip op., at 2.
    6
    Here, Gray argues, in essence, that because he has been
    represented by the same counsel in both state and federal post-
    conviction proceedings, he is unable to identify any potential
    Martinez claims and to rely thereon to assert “cause” to excuse
    any    such   otherwise    procedurally           defaulted        claims   because       in
    order to do so his current counsel would be required to argue
    their   own   ineffectiveness           in    their   representation          of    him   in
    state post-conviction proceedings. Gray maintains that such a
    task would create a conflict of interest that contravenes his
    counsels’ professional ethical duties and thereby corrode their
    duty of vigorous representation.
    The Warden contends, unpersuasively, that no such conflict
    of interest exists. He argues that “[f]ederal habeas counsel’s
    duties are no different now than before Martinez was decided. If
    there was a defaulted Strickland claim existing before Martinez
    that    counsel   deemed        meritorious       enough      to    present,        counsel
    presented it. That has not changed. There is no requirement, and
    no need, to appoint additional counsel.” Appellee’s Br. 37. The
    Warden also points to the fact that Gray’s present counsel have
    failed to identify any potential procedurally defaulted claims,
    otherwise     barred      but     for        Martinez,   as        evidence        that   no
    substantial claim can be made. We do not agree with the Warden’s
    arguments.
    7
    We     find   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
    ineffectiveness of trial counsel while they represented Gray in
    his state post-conviction proceedings; the conflict is anything
    but “theoretical.” J.A. 1634. Indeed, the Virginia State Bar
    Ethics Counsel advised Gray’s counsel that they are ethically
    barred from investigating their own ineffectiveness. J.A. 1695.
    This opinion, in addition to two affidavits of legal ethics
    experts who agreed that Gray’s counsel are ethically barred from
    representing Gray on his Martinez claims, were presented to the
    district    court.   The       district     court    nonetheless        denied    Gray’s
    motion for new counsel, principally on the ground that such
    counsel    had    failed       to    identify     any    such       potential    claims,
    stating    that   “there       has    not    been    demonstrated        a   sufficient
    showing for the appointment of additional counsel.”
    This refusal to appoint counsel is unsupportable by basic
    legal   ethics    principles.         Other      legal   authorities         agree.   See
    David M. Barron, Martinez Casts Doubt on State Post conviction
    and Federal Habeas Representation, 27-FALL CRIM JUST. 42 (2012)
    (“Because    attorneys         cannot    argue      their     own    ineffectiveness,
    [Martinez] creates a potential problem regarding whether state
    postconviction counsel should represent the defendant in federal
    habeas proceedings.”).
    8
    The    fact,      even   if   true,       that    Gray’s   counsel    did     not
    identify any “sufficient[ly] substantial” claim under Martinez
    does    not   undercut      their    request      that    independent      counsel    be
    appointed to explore Gray’s Martinez claims. We see no material
    difference between an ethical prohibition on a lawyer’s attempt
    to investigate or advance her own potential errors, on the one
    hand, and a like prohibition on her attempts to identify and
    produce a list of her own errors giving rise to a “substantial
    claim” on the other hand.
    Accordingly, because Gray’s counsel are barred from fully
    identifying, investigating and presenting his potential Martinez
    claims, we vacate the judgment of the district court and remand
    the    case   for     further   proceedings        not    inconsistent      with   this
    Order. We defer consideration of the merits of the other claim
    as to which a certificate of appealability has been granted.
    Entered      at    the    direction        of     Judge    Davis,    with     the
    concurrence of Judge Wynn and Judge Diaz.
    For the Court
    /s/ Patricia S. Connor, Clerk
    9