Scott Hill v. Patrick Glebe , 654 F. App'x 294 ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 16 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT MICHAEL HILL, No. 15-35458
Petitioner - Appellee, D.C. No. 3:14-cv-05330-RJB
v.
MEMORANDUM*
PATRICK GLEBE,
Respondent - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted June 7, 2016
Seattle, Washington
Before: PAEZ, BYBEE, and CHRISTEN, Circuit Judges.
Hill was convicted of various crimes in Washington state court. He later
filed a habeas petition in federal court. In it, Hill provided evidence suggesting
that he had a colorable diminished capacity defense to his state convictions. He
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
also provided evidence indicating that his trial counsel may have been ineffective
in not discovering and presenting this defense during trial.
Hill’s ineffective assistance claim was never considered on the merits by the
Washington Supreme Court because Hill’s state habeas counsel did not properly
raise it. Normally, this would mean Hill is procedurally barred from raising this
claim in this federal habeas proceeding. But the federal district court ordered an
evidentiary hearing to determine whether Hill falls under the procedural bar
exception outlined in Martinez v. Ryan, 132 S. Ct. 1309 (2012).
The government sought this interlocutory appeal on the narrow question of
whether Hill is entitled to an evidentiary hearing in these circumstances. We hold
he is, and affirm.
1. Hill is entitled to an evidentiary hearing under Martinez v. Ryan. Because
the Washington Supreme Court dismissed Hill’s ineffective assistance claim on
procedural grounds, this would normally mean Hill is procedurally barred from
raising this claim in these federal habeas proceedings. Dickens v. Ryan, 740 F.3d
1302, 1317 (9th Cir. 2014) (en banc). Indeed, the government conceded at oral
argument that procedural bar could apply here. But procedural bar is excused if
the petitioner can show that his state habeas counsel was ineffective in not raising
his trial ineffective assistance claim. Id. at 1318; see also Martinez, 132 S. Ct. at
2
1315. To prove cause, petitioners must be afforded an evidentiary hearing to
develop a proper factual record. Detrich v. Ryan, 740 F.3d 1237, 1246–48 (9th
Cir. 2013) (en banc). Thus, because Hill claims that his state habeas counsel was
ineffective in not properly raising his trial ineffective assistance claim, he should
be afforded an evidentiary hearing to establish cause under Martinez. See Dickens,
740 F.3d at 1321 (holding that the petitioner should be afforded an evidentiary
hearing to determine whether a procedural default should be excused and, if so
“AEDPA [would] no longer appl[y] and a federal court [could] hear this new claim
de novo”); see also Martinez, 132 S. Ct. at 1318 (“Allowing a federal habeas court
to hear a claim of ineffective assistance of trial counsel when an attorney's errors
(or the absence of an attorney) caused a procedural default in an initial-review
collateral proceeding acknowledges, as an equitable matter, that the initial-review
collateral proceeding, if undertaken without counsel or with ineffective counsel,
may not have been sufficient to ensure that proper consideration was given to a
substantial claim.”).
2. We reject the government’s contention that 28 U.S.C. § 2254(e) requires
Hill’s ineffective assistance claims to be determined solely on the record provided
to the state courts. Section 2254(e) “does not bar a hearing before the district court
to allow a petitioner to show ‘cause’ under Martinez.” Dickens, 740 F.3d at 1321.
3
Indeed, the Washington Supreme Court rejected Hill’s claim on procedural
grounds, so there is not yet a full evidentiary record. See Detrich, 740 F.3d at
1247–48 (“[G]iven that the reason for the hearing is the alleged ineffectiveness of
both trial and PCR counsel, it makes little sense to apply § 2254(e)(2).”).
3. Finally, there is no merit to the government’s argument that it can prevent
Martinez from applying by simply refraining from raising the procedural bar. The
federal courts can apply the procedural bar sua sponte. See Chaker v. Crogan, 428
F.3d 1215, 1220 (9th Cir. 2005) (“[W]e may sua sponte . . . [find the petitioner]
procedurally barred.”); Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003). And
the state’s position that it must voluntarily raise the procedural bar before a
petitioner can have a hearing under Martinez would lead to absurd results: The
government could opt never to raise the procedural bar, effectively preventing a
petitioner from ever developing a factual record to support his ineffective
assistance claim.
AFFIRMED.
4