Ha Nguyen v. Ben Curry , 736 F.3d 1287 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HA VAN NGUYEN, No. 11-56792
Petitioner-Appellant,
D.C. No.
v. 8:08-cv-00198-JST-FFM
BEN CURRY,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Josephine Staton Tucker, District Judge, Presiding
Argued and Submitted
June 4, 2013—Pasadena, California
Filed December 4, 2013
Before: Stephen S. Trott and William A. Fletcher,
Circuit Judges, and Sidney H. Stein, District Judge.*
Opinion by Judge W. Fletcher
*
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
2 NGUYEN V. CURRY
SUMMARY**
Habeas Corpus
The panel reversed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition and remanded for
consideration in light of the Supreme Court’s intervening
decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).
After his direct appeal concluded and counsel withdrew
from the case, petitioner filed a pro se § 2254 petition that
included a procedurally defaulted Double Jeopardy claim.
The district court stayed and abeyed proceedings to allow
petitioner to exhaust this claim in state court, as well as a
claim that appellate counsel was ineffective for failing to
raise the Double Jeopardy claim. The state court denied the
state habeas petition as untimely, and petitioner filed an
amended § 2254 petition raising both procedurally defaulted
claims. The panel held that Martinez applies to ineffective
assistance of appellate counsel as well as trial counsel. The
panel further held that petitioner’s ineffective assistance of
appellate counsel claim related back to the original § 2254
petition and was therefore timely. The panel remanded for
the district court to consider in the first instance whether the
procedural default of either claim may be excused under
Martinez.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NGUYEN V. CURRY 3
COUNSEL
Patricia A. Young (argued), Federal Public Defender’s
Office, Los Angeles, California, for Petitioner-Appellant.
Matthew Mulford (argued), Office of the California Attorney
General, San Diego, California, for Respondent-Appellee.
OPINION
W. FLETCHER, Circuit Judge:
Ha Van Nguyen appeals the district court’s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254.
The district court denied two of his three claims as
procedurally defaulted. Nguyen contends that his procedural
default should be excused under the standard for “cause”
articulated in Martinez v. Ryan, 132 S. Ct. 1309 (2012). The
Supreme Court in Martinez established an equitable rule
under which the failure of an ineffective counsel or pro se
petitioner to raise, in a state court initial-review collateral
proceeding, a claim of ineffective assistance of counsel
(“IAC”) at trial can be “cause” to excuse a state-court
procedural default. The question before us is whether
Martinez applies to the failure to raise not only a claim of
trial-counsel IAC, but also a claim of appellate-counsel IAC.
We conclude that it does. We remand to allow the district
court to determine in the first instance whether Nguyen’s
state-court procedural default should be excused under
Martinez.
4 NGUYEN V. CURRY
I. Background
On February 26, 2003, Orange County Sheriff
Department deputies found Nguyen asleep behind the wheel
of his car, stopped at a green traffic light. After he was
awakened, Nguyen identified himself to the deputies using a
false name and false identification. Nguyen consented to a
search of the car. The officers found two pieces of rock
cocaine that Nguyen was hiding in his fist. They also found
a social security card bearing the name “Kevin Lu,” as well
as three driver’s licenses bearing different names, including
that of Lu.
Nguyen was convicted after a jury trial in California
Superior Court of felony cocaine possession, Cal. Health &
Safety Code § 11350(a) (“Count One”); felony possession of
a forged driver’s license with intent to facilitate forgery, Cal.
Penal Code § 470b (“Count Two”); and misdemeanor false
identification to a peace officer, Cal. Penal Code § 148.9(a)
(“Count Three”). The trial court found that Nguyen had
previously been convicted of six qualifying felonies and was
therefore eligible to be sentenced pursuant to California’s
three-strikes law. See Cal. Penal Code § 667. The court
imposed a three-strikes sentence of 25 years to life on the
forgery conviction, Count Two. The court struck the prior
convictions for the felony cocaine possession conviction,
Count One, and imposed a three-year concurrent sentence on
that count. The misdemeanor conviction, Count Three, was
irrelevant to the three-strikes sentence.
On appeal, Nguyen’s counsel argued that the prosecution
had presented insufficient evidence at trial to support a
conviction on Count Two. The California Court of Appeal
agreed. It reduced Nguyen’s conviction on Count Two to
NGUYEN V. CURRY 5
misdemeanor display of a fraudulent driver’s license, Cal.
Veh. Code § 14610(a)(1), and remanded for resentencing. On
remand, the trial court reversed its earlier decision to strike
Nguyen’s prior convictions for purposes of sentencing under
Count One. The court then resentenced Nguyen under Count
One to a three-strikes sentence of 25 years to life. At the time
of his resentencing under Count One, Nguyen had already
served the three-year concurrent sentence previously imposed
for that count. The trial court suspended Nguyen’s sentence
for Counts Two and Three, both of which were now
misdemeanor convictions. Nguyen’s trial counsel objected
that the new sentence on Count One was a “violation of the
Fifth, Sixth and Fourteenth Amendments . . . in that . . . it
increases the original punishment on Count One.”
Nguyen appealed again. Nguyen’s court-appointed
counsel on his second appeal argued that the trial court’s
decision to reinstate his prior felony convictions for purposes
of resentencing under Count One was an abuse of discretion
under state law. She also argued that a 25-years-to-life
sentence for Count One—felony possession of cocaine—was
grossly disproportionate to the crime, constituting cruel and
unusual punishment under the Eighth Amendment. She did
not make a double jeopardy argument under the Fifth
Amendment. The California Court of Appeal affirmed
Nguyen’s sentence, and the California Supreme Court denied
his petition for review.
Nguyen’s counsel on his second appeal sent a letter to
Nguyen after the California Supreme Court denied his
petition. She wrote that her “appointment as [his] attorney
ha[d] now come to an end.” She informed Nguyen that if he
“wish[ed] to go on to federal court [he] must do so on [his]
6 NGUYEN V. CURRY
own.” She did not mention the possibility of filing a state
habeas petition.
Now without counsel, Nguyen did not file a petition for
habeas corpus in state court. Instead, he filed a timely pro se
habeas petition in federal court under 28 U.S.C. § 2254.
Nguyen asserted two claims: (1) his new sentence violated
the Eighth Amendment’s prohibition against cruel and
unusual punishment, and (2) his new sentence on Count One
violated his Fifth Amendment right to be free from double
jeopardy. The first claim had been exhausted in state court;
the second claim had not. The magistrate judge granted a
stay and abeyance of his federal habeas proceedings to allow
Nguyen to exhaust his double jeopardy claim. The magistrate
judge also granted a stay and abeyance for an additional claim
that appellate counsel on his second appeal had been
ineffective in failing to raise a double jeopardy claim. The
magistrate judge characterized both the double jeopardy
claim and the additional appellate-counsel IAC claim based
on the failure to raise the double jeopardy claim as
“potentially meritorious.”
Nguyen filed a petition for habeas corpus directly with the
California Supreme Court, seeking review of these two
unexhausted claims. The California Supreme Court
summarily denied the petition, citing In re Clark, 855 P.2d
729 (1993). A summary denial citing Clark indicates that the
California Supreme Court rejects a petition as untimely rather
than on the merits. Walker v. Martin, 131 S. Ct. 1120, 1126
(2011).
Nguyen then filed an amended federal habeas petition,
after the expiration of the statute of limitations, asserting
three claims for relief: (1) the non-defaulted cruel and
NGUYEN V. CURRY 7
unusual punishment claim; (2) the procedurally defaulted
double jeopardy claim, and (3) the procedurally defaulted
appellate-counsel IAC claim based on the failure to raise the
double jeopardy claim. Claims (1) and (2) had been
contained in the original, timely filed federal habeas petition.
Claim (3) had not been contained in the original petition. The
magistrate judge recommended denial of Nguyen’s petition
with prejudice. He concluded that the state court’s
determination that Nguyen’s sentence did not violate the
prohibition against cruel and unusual punishment was not
contrary to, or an unreasonable application of, clearly
established Supreme Court law. He also concluded that
Nguyen had not shown cause and prejudice under Coleman
v. Thompson, 501 U.S. 722 (1991), to excuse either the state-
court procedural default of his double jeopardy claim, or of
his appellate-counsel IAC claim for failure to raise the double
jeopardy claim. The magistrate judge did not address the
State’s argument that Nguyen’s appellate-counsel IAC claim
was untimely under the one-year statute of limitations of
28 U.S.C. § 2244(d). The district court adopted the
recommendation in full and dismissed the petition with
prejudice. Nguyen timely appealed the denial of his
procedurally defaulted double jeopardy claim, and of his
procedurally defaulted appellate-counsel IAC claim based on
the failure to raise the double jeopardy claim.
II. Discussion
While Nguyen’s appeal was pending in this court, the
Supreme Court decided Martinez. Nguyen argues in light of
Martinez that the procedural default of his appellate-counsel
IAC claim should have been excused. The State argues that
Martinez does not apply to an underlying appellate-counsel
IAC claim. The State also argues that Nguyen’s appellate-
8 NGUYEN V. CURRY
counsel IAC claim was time-barred because he filed it after
the limitations period of 28 U.S.C. § 2244(d) had expired and
it did not relate back to the original, timely petition.
A. Martinez and Appellate-counsel IAC
An application for a federal writ of habeas corpus cannot
be granted unless the petitioner has exhausted state court
remedies or is excused from doing so. 28 U.S.C.
§ 2254(b)(1)(A). A petitioner exhausts a claim by clearly
presenting “to the highest court of the state . . . the federal
basis and federal nature of the claim, along with relevant
facts.” Cooper v. Neven, 641 F.3d 322, 326–27 (9th Cir.
2011), cert. denied, 132 S. Ct. 558 (2011). If a petitioner tries
to present a claim to the state court but is prevented from
doing so by his failure to comply with a state procedural rule,
the claim is “technically exhausted” but procedurally
defaulted. Id. at 327.
In the ordinary case, a state-court procedural default may
be excused only if a habeas petitioner can demonstrate both
“cause” for the default and resulting “prejudice” under
Coleman v. Thompson.
“[C]ause” under the cause and prejudice test
must be something external to the petitioner,
something that cannot fairly be attributed to
him: We think that the existence of cause for
a procedural default must ordinarily turn on
whether the prisoner can show that some
objective factor external to the defense
impeded counsel’s efforts to comply with the
State’s procedural rule.
NGUYEN V. CURRY 9
Coleman, 501 U.S. at 753 (internal quotation marks omitted).
To show “prejudice” under Coleman, the “habeas petitioner
must show ‘not merely that the errors at . . . trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.’” Murray v. Carrier, 477 U.S.
478, 494 (1986) (quoting United States v. Frady, 456 U.S.
152, 170 (1982)) (omission and emphasis in original).
In Martinez, the Supreme Court relaxed the Coleman
cause-and-prejudice standard for excuse from procedural
default in a narrow category of cases. Martinez had been
convicted in Arizona, which categorically forbade a prisoner
to raise a trial-counsel IAC claim on direct appeal. Martinez,
132 S. Ct. at 1313. The first time a claim of trial-counsel IAC
could be raised was on initial state-court collateral review.
Id. Martinez’s state postconviction counsel failed to raise a
claim of trial-counsel IAC in initial-review state-court
collateral proceedings. Id. This failure resulted in procedural
default of the IAC claim. Id. at 1314. Our court applied
Coleman’s cause-and-prejudice standard for excuse from
procedural default. Martinez v. Schriro, 623 F.3d 731, 735
(9th Cir. 2010). The Supreme Court reversed.
The Court in Martinez did not distinguish between trial-
counsel and appellate-counsel IAC. In the introduction to its
opinion, the Court framed the question as “whether a federal
habeas court may excuse a procedural default of an
ineffective-assistance claim when the claim is not properly
presented in state court due to an attorney’s errors in an
initial-review proceeding.” Martinez, 132 S. Ct. at 1313.
The Court’s answer was that procedural default of “an
ineffective-assistance claim” by postconviction counsel in an
initial-review state-court collateral proceeding should be
10 NGUYEN V. CURRY
excused under a more lenient standard than cause and
prejudice under Coleman. Id. at 1318–19.
The centerpiece of the Court’s analysis in Martinez is the
fundamental importance of effective assistance of counsel
guaranteed by the Sixth Amendment. In Martinez’s case, his
Sixth Amendment claim was trial-counsel IAC. The Court
wrote:
The right to the effective assistance of counsel
at trial is a bedrock principle in our justice
system. . . . Indeed, the right to counsel is the
foundation for our adversary system. Defense
counsel tests the prosecution’s case to ensure
that the proceedings serve the function of
adjudicating guilt or innocence, while
protecting the rights of the person
charged. . . . Effective trial counsel preserves
claims to be considered on appeal, and in
federal habeas proceedings.
Id. at 1317–18 (citations omitted).
The Court pointed out that, in Arizona, the first state-
court opportunity to raise a claim of trial-counsel IAC was on
initial collateral review. The Court declined to hold that a
criminal defendant has a constitutional right to effective
assistance of postconviction counsel. But it recognized, as a
practical matter, that if a constitutional claim of ineffective
assistance of counsel could not be raised on direct appeal, the
initial collateral review proceeding was the functional
“equivalent” of a direct appeal. Id. at 1317. The Court
therefore established, as an equitable rule, that the procedural
default of Martinez’s underlying trial-counsel IAC claim by
NGUYEN V. CURRY 11
his ineffective postconviction counsel could be excused under
a more lenient standard than the Coleman cause-and-
prejudice standard. Id. at 1318–19.
The Court reaffirmed Martinez a year later in Trevino v.
Thaler, 133 S. Ct. 1911 (2013). In Martinez, Arizona law had
categorically forbidden a criminal defendant from raising a
claim of trial-counsel IAC on direct appeal, requiring instead
that such a claim be raised in an initial-review collateral
proceeding. In Trevino, Texas law did not categorically
forbid a criminal defendant from raising a claim of trial-
counsel IAC on direct appeal. Trevino, 133 S. Ct. at 1915.
But the Court recognized that it was “highly unlikely” that
appellate counsel would have a “meaningful opportunity” to
raise such a claim. Id. at 1921. The Court held that, in this
circumstance, a procedural default of an underlying trial-
counsel IAC claim by postconviction counsel could be
excused upon a finding of “cause” under the standard
articulated in Martinez. Id.
The Court in Martinez established a four-part test for
excuse of a procedural default of a trial-counsel IAC claim by
an ineffective postconviction counsel. The procedural default
may be excused if there is “cause” for the default. “Cause”
under Martinez has a different meaning than under Coleman.
“Cause” is established under Martinez 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
12 NGUYEN V. CURRY
“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
review proceeding.”
Trevino, 133 S. Ct. at 1918 (alterations in original). As
described above, Trevino slightly modified the fourth
requirement to allow a finding of “cause” where it is “highly
unlikely” that an IAC can be raised on direct appeal. Id. at
1921.
The question before us is whether the standard for
“cause” articulated in Martinez and reaffirmed in Trevino
applies in a case where the underlying IAC is by appellate
counsel rather than trial counsel. We conclude that it does.
The Sixth Amendment right to effective counsel applies
equally to both trial and appellate counsel. Compare Gideon
v. Wainwright, 372 U.S. 335, 344 (1963) (trial counsel)
(“[A]ny person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is
provided for him.”), and Powell v. Alabama, 287 U.S. 45, 69
(1932) (trial counsel) (“[The defendant] requires the guiding
hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of
conviction because he does not know how to establish his
innocence.”), with Evitts v. Lucey, 469 U.S. 387, 396 (1985)
(appellate counsel) (“A first appeal as of right . . . is not
adjudicated in accord with due process of law if the appellant
does not have the effective assistance of an attorney.”), and
Douglas v. California, 372 U.S. 353, 357 (1963) (appellate
counsel) (“[W]here the merits of the one and only appeal an
indigent has as of right are decided without benefit of
NGUYEN V. CURRY 13
counsel, we think an unconstitutional line has been drawn
between rich and poor.”).
There is nothing in our jurisprudence to suggest that the
Sixth Amendment right to effective counsel is weaker or less
important for appellate counsel than for trial counsel. The
Court in Coleman made clear that the dividing line between
cases in which state-court procedural default should, or
should not, be forgiven was the line between constitutionally
ineffective and merely negligent counsel: “Where a petitioner
defaults a claim as a result of the denial of the right to
effective assistance of counsel, the State, which is responsible
for the denial as a constitutional matter, must bear the cost of
any resulting default and the harm to state interests that
federal habeas review entails.” Coleman, 501 U.S. at 754.
The Court in Coleman did not distinguish between ineffective
assistance by trial and appellate counsel. In Martinez itself,
the Court emphasized the importance of effective appellate
counsel. It wrote:
As Coleman recognized, an attorney’s errors
during an appeal on direct review may
provide cause to excuse a procedural default;
for if the attorney appointed by the State to
pursue the direct appeal is ineffective, the
prisoner has been denied fair process and the
opportunity to comply with the State’s
procedures and obtain an adjudication on the
merits of his claims.
Martinez, 132 S. Ct. at 1317.
The Court’s central point in Martinez is that a
“substantial” IAC claim deserves one chance to be heard on
14 NGUYEN V. CURRY
initial review in a state postconviction proceeding. The Court
wrote:
When an attorney errs in initial-review
collateral proceedings, it is likely that no state
court at any level will hear the prisoner’s
claim. . . . [I]f counsel’s errors in an initial-
review collateral proceeding do not establish
cause to excuse the procedural default in a
federal habeas proceeding, no court will
review the prisoner’s claims.
The same is not true when counsel errs in
other kinds of postconviction proceedings. . . .
. . . [T]he initial-review collateral
proceeding . . . is in many ways the equivalent
of a prisoner’s direct appeal . . . because . . .
no other court has addressed the claim.
Id. at 1316–17.
What the Court wrote with respect to procedural default
of a claim of trial-counsel IAC is equally true of a claim of
appellate-counsel IAC. Trial-counsel IAC typically cannot be
raised on appeal because of the necessity to develop and rely
on evidence that is not in the trial-court record. Appellate-
counsel IAC cannot be raised on appeal because the appeal
was the proceeding in which the constitutionally ineffective
assistance occurred. In either case, the initial-review state-
court collateral proceeding is the first place in which an IAC
claim can be made. If a procedural default by an ineffective
postconviction counsel forfeits an underlying trial-counsel or
NGUYEN V. CURRY 15
an appellate-counsel IAC claim, no court will ever hear that
underlying IAC claim.
The procedural default in Coleman was the result of
ineffective assistance by appellate counsel, who had failed to
bring a timely appeal of the trial court’s denial of the state
habeas petition. Coleman, 501 U.S. at 727. The Court in
Martinez made clear that the cause-and-prejudice rule was
appropriate in Coleman because the petitioner had been able
to present his claims in an initial-review state-court
postconviction proceeding. The Court in Martinez
distinguished Coleman, but not on the ground that the
underlying claim was appellate-counsel IAC. Rather, the
Court emphasized that Coleman
did not present the occasion to apply [its
holding] to determine whether attorney errors
in initial-review collateral proceedings may
qualify as cause for a procedural default. The
alleged failure of counsel in Coleman was on
appeal from an initial-review collateral
proceeding, and in that proceeding the
prisoner’s claims had been addressed by the
state habeas trial court.
Martinez, 132 S. Ct. at 1316 (emphasis added).
The Court in Martinez was careful to restrict its holding
to ineffective assistance in the initial-review collateral
proceeding in state court. The Court wrote:
The rule of Coleman governs in all but the
limited circumstances recognized here. The
holding in this case does not concern attorney
16 NGUYEN V. CURRY
errors in other kinds of proceedings, including
appeals from initial-review collateral
proceedings, second or successive collateral
proceedings, and petitions for discretionary
review in a State’s appellate courts. It does
not extend to attorney errors in any
proceeding beyond the first occasion the State
allows a prisoner to raise a claim of
ineffective assistance at trial, even though that
initial-review collateral proceeding may be
deficient for other reasons.
Id. at 1320 (citations omitted). This passage specifies that the
Martinez standard for cause applies only in the “limited
circumstances recognized here.” We read the passage to limit
application of the Martinez “cause” standard to procedural
default by postconviction counsel at the initial-review
collateral proceeding, by specifying that the Martinez
standard does not apply to other kinds of defaults by
postconviction counsel. We do not read the passage to limit
application of the Martinez standard to only one kind of Sixth
Amendment ineffective assistance violation.
Our reading is consistent with the question the Court
asked at the beginning of its opinion in Martinez: “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.” Id. at 1313. That
question was not limited to a claim of ineffective assistance
by trial counsel. It encompassed, without qualification, “an
ineffective assistance claim.” We therefore conclude that the
Martinez standard for “cause” applies to all Sixth
Amendment ineffective-assistance claims, both trial and
NGUYEN V. CURRY 17
appellate, that have been procedurally defaulted by
ineffective counsel in the initial-review state-court collateral
proceeding.
We recognize that several of our sister circuits have held
otherwise. In 2012, before the Court decided Trevino, the
Eighth and Tenth Circuits understood Martinez to be limited
to the circumstance where state law categorically forbade
raising claims of trial-counsel IAC on direct appeal. See
Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012);
Dansby v. Norris, 682 F.3d 711, 728–29 (8th Cir. 2012),
vacated sub nom. Dansby v. Hobbs, 133 S. Ct. 2767 (2013).
In rejecting that understanding of Martinez, the Court in
Trevino made clear that the “limited-circumstances” language
in Martinez did not limit its holding to the circumstance
where a state law categorically forbids claims of trial-counsel
IAC on direct appeal. Trevino, 133 S. Ct. at 1921. The Court
held that the “cause” standard articulated in Martinez also
applied in the circumstance where a prisoner was merely
“highly unlikely” as a practical matter to have a “meaningful
opportunity” to raise a claim of trial-counsel IAC on direct
appeal. Id.
The Eighth and Tenth Circuits also understood Martinez
to be limited to claims of trial-counsel IAC. Banks, 692 F.3d
at 1148; Dansby, 682 F.3d at 729; see also Hodges v. Colson,
727 F.3d 517, 531 (6th Cir. 2013). We believe those courts
are wrong in reading into Martinez the limitation to trial-
counsel IAC, for the same reason they were wrong in reading
into Martinez the limitation to state statutes categorically
forbidding IAC claims on direct appeal. The fundamental
principle of Martinez is that a criminal defendant deserves a
chance to assert a Sixth Amendment claim of ineffective
assistance of counsel. Because an ineffective assistance
18 NGUYEN V. CURRY
claim cannot as a practical matter be made on direct appeal,
the Court formulated an equitable rule that allows excuse of
procedural default by ineffective counsel at the initial-review
collateral proceeding. The Martinez rule is limited to an
underlying Sixth Amendment ineffective assistance claim,
and to a procedural default by ineffective counsel in an
initial-review collateral proceeding. But, as the Court held in
Trevino, it is not limited to cases in which a state statute
categorically prohibits raising a Sixth Amendment IAC claim
on direct review. Similarly, as we hold here, it is not limited
to Sixth Amendment claims of trial-counsel IAC. It also
extends to Sixth Amendment claims of appellate-counsel
IAC.
B. Statute of Limitations and Relation Back
Nguyen was required to file his habeas petition on or
before May 27, 2008. He filed his original petition in
February 2008, well within the limitations period. He alleged
two claims in his original petition: an exhausted Eighth
Amendment cruel and unusual punishment claim, and an
unexhausted Fifth Amendment double jeopardy claim.
Nguyen then filed an amended petition after the expiration of
the statute of limitations in which he realleged his Eighth
Amendment claim and his now-exhausted double jeopardy
claim and alleged, for the first time, his appellate-counsel
IAC claim.
The State contended in the district court, and contends
before us, that Nguyen’s appellate-counsel IAC claim is
untimely. The district court did not reach that question. But
the question has been briefed and presented to us, and we see
no reason not to decide it now.
NGUYEN V. CURRY 19
A claim added to a timely filed habeas petition after the
expiration of the statute of limitations is timely only if the
new claim relates back to a properly filed claim contained in
the original petition. To be properly filed, a claim must have
been exhausted at the time of filing. King v. Ryan, 564 F.3d
1133, 1142 (9th Cir. 2009). Nguyen’s double jeopardy claim
was not exhausted when he included it in his original habeas
petition. His appellate-counsel IAC claim was not included
in the original habeas petition at all. Therefore, neither of
these claims was timely filed unless it relates back.
In Mayle v. Felix, 545 U.S. 644 (2005), the Court held
that a late-filed claim in an amended federal habeas petition
relates back under Rule 15(c) if the timely claim and the late-
filed claim “are tied to a common core of operative facts.”
Id. at 664. The State made no timeliness objection, either in
the district court or here, to Nguyen’s double jeopardy claim
in his amended petition. It wrote in its brief to us that it
declined to object because the double jeopardy claim “shared
a common core of operative facts” with Nguyen’s timely filed
cruel and unusual punishment claim. The double jeopardy
claim therefore related back to the date of filing Nguyen’s
original habeas petition. However, the State contends that
Nguyen’s appellate-counsel IAC claim for failure to raise a
double jeopardy claim does not relate back and is therefore
untimely. The State argues that Nguyen’s appellate-counsel
IAC claim does not relate back because it concerned events
that occurred after the resentencing hearing. The question
before us is thus whether the fact that the IAC claim arose
later in time means that it may not relate back.
The Court wrote in Mayle, “An amended habeas petition
. . . does not relate back (and thereby escape AEDPA’s one-
year time limit) when it asserts a new ground for relief
20 NGUYEN V. CURRY
supported by facts that differ in both time and type from those
the original pleading sets forth.” Id. at 650. It is true, as the
State points out, that Nguyen’s claims “differ in . . . time.”
His cruel and unusual punishment and double jeopardy claims
arose at resentencing, when he was sentenced to twenty-five-
years-to-life on Count One after he had already served all of
the three-year sentence originally imposed under that count.
His appellate-counsel IAC claim for failure to raise the
double jeopardy claim arose later, when his counsel failed to
raise that claim on appeal. It is also true that Nguyen’s
claims “differ in . . . type.” One is an Eighth Amendment
cruel and unusual punishment claim, one is a Fifth
Amendment double jeopardy claim, and one is a Sixth
Amendment IAC claim.
But the “time and type” language in Mayle refers not to
the claims, or grounds for relief. Rather, it refers to the facts
that support those grounds. All of Nguyen’s asserted
grounds for relief—cruel and unusual punishment, double
jeopardy, and appellate-counsel IAC for failing to raise
double jeopardy—are supported by a common core of facts.
Those facts are simple, straightforward, and uncontroverted.
And they were clearly alleged in the original pleading. They
are, first, that Nguyen fully served the sentence originally
imposed for Count One; and, second, that the court thereafter
resentenced Nguyen to imprisonment for twenty-five-years-
to-life on the same count. Compare Hebner v. McGrath,
543 F.3d 1133, 1139 (9th Cir. 2008) (finding no relation back
where the two claims were a challenge to the admission of
testimony and a challenge to a jury instruction).
We therefore conclude that Nguyen’s appellate-counsel
IAC claim relates back under Rule 15(c).
NGUYEN V. CURRY 21
Conclusion
Because the district court decided this case before the
Supreme Court decided Martinez, it has not had the
opportunity to apply the Martinez standard for “cause” to
determine whether Nguyen’s procedural default may be
excused. We therefore remand to give the district court the
opportunity to apply in the first instance Martinez’s standard
for “cause” to Nguyen’s procedural default. If the district
court concludes that Nguyen’s procedural default of his
appellate counsel’s IAC may be excused, and if the district
court also concludes that Nguyen’s second appellate counsel
provided constitutionally ineffective assistance in failing to
raise his double jeopardy claim on direct appeal, the
procedural default of Nguyen’s second appellate counsel may
also be excused. See Coleman, 501 U.S. at 754.
REVERSED and REMANDED.