Ramirez v. Shinn

971 F.3d 1116 (Mem)

David Martinez RAMIREZ, Petitioner-Appellant,

v.David SHINN,^* Director, Arizona Department of Corrections, Respondent-Appellee.

No. 10-99023

United States Court of Appeals, Ninth Circuit.

Filed August 24, 2020

ORDER

The panel has voted to deny the Respondent-Appellee's petition for rehearing. Chief Judge Thomas and Judge Berzon voted, and Judge Clifton recommended, to deny Respondent-Appellee's petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED . No future petitions for rehearing or rehearing en banc will be entertained.

COLLINS, Circuit Judge, with whom CALLAHAN, IKUTA, R. NELSON, LEE, BRESS, BUMATAY, and VANDYKE, Circuit Judges, join, dissenting from the denial of rehearing en banc:

The panel decisions in Ramirez v. Ryan , 937 F.3d 1230 (9th Cir. 2019), and Jones v. Shinn , 943 F.3d 1211 (9th Cir. 2019), disregard controlling Supreme Court precedent by creating a new judge-made exception to the restrictions imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") on the use of new evidence in habeas corpus proceedings. See 28 U.S.C. § 2254(e)(2). I respectfully dissent from our failure to rehear these cases en banc.¹

As the Supreme Court has explained, the negligence of "postconviction counsel" in developing the evidentiary record in state court is "chargeable to the client and precludes relief unless the conditions of § 2254(e)(2) are satisfied." Holland v. Jackson , 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004). Specifically, § 2254(e)(2) bars "relief based on new evidence," with or without a hearing, unless one of its exceptions is applicable. Id. In both Jones and Ramirez , state postconviction counsel failed to develop the record to support the current claims of ineffective assistance of trial counsel that both petitioners wish to present in federal habeas corpus proceedings. Although there is (and can be) no contention that any of § 2254(e)(2)'s exceptions apply in either case, the panels in both cases nonetheless held that the strictures of § 2254(e)(2) did not apply to the new evidence that the petitioners wished to present in support of the merits of those claims.

The panels' reasoning was that, because the Supreme Court has held that ineffective assistance of postconviction counsel may establish "cause to excuse" the separate "procedural default" of failing to raise an ineffective-assistance-of-trial-counsel claim in state court, see Martinez v. Ryan , 566 U.S. 1, 13, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), a similar exception should also be recognized to excuse the separate prohibition on new evidence set forth in § 2254(e)(2). But Martinez relied on "the Court's discretion" to alter judge-made rules of procedural default, id. , and that power to recognize "judge-made exceptions" to judge-made doctrines does not extend to statutory provisions, Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1857, 195 L.Ed.2d 117 (2016). "There, Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to." Id. And Congress has been clear in § 2254(e)(2) that it does not want any such new exceptions. Indeed, prior to the enactment of § 2254(e)(2), both distinct types of failure (i.e. , failure to raise a claim at all and failure to develop the factual record) were governed by the same "cause and prejudice" standard that Martinez later modified. See Coleman v. Thompson , 501 U.S. 722, 753–54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ; Keeney v. Tamayo-Reyes , 504 U.S. 1, 11, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). But in § 2254(e)(2), Congress explicitly abrogated Keeney 's "cause and prejudice" standard and replaced it with a much more demanding standard that is concededly not met in either Jones or Ramirez . Given that Congress has eliminated in the evidentiary-development context the very predicate on which Martinez is based, we have no authority to rewrite the statute and to engraft a judge-made Martinez exception onto it.

The Ramirez decision presents a particularly stark violation of § 2254(e)(2). Jones only went so far as to contend that the same evidence used to established cause and prejudice under Martinez could then be used, notwithstanding § 2254(e)(2), to establish the merits of the underlying ineffective-assistance-of-trial-counsel claim. While I believe that even this result contravenes Supreme Court authority, it at least has the virtue of making its new judge-made exception to § 2254(e)(2) coextensive with the Martinez exception. But in Ramirez , the panel held that, even after the Martinez exception had been established with new evidence, the petitioner was entitled to keep going and to develop even more evidence as if § 2254(e)(2) did not exist at all. Nothing supports Ramirez 's egregious disregard of the clear strictures of § 2254(e)(2).

I

A

David Ramirez was convicted by an Arizona jury of the first-degree murders of his girlfriend and her daughter, and he was sentenced to death by a judge. Ramirez , 937 F.3d at 1234. Ramirez's trial attorney, Mara Siegel, was a Maricopa County public defender, and Ramirez's case was her first capital assignment. Id. at 1235. After his conviction and sentence were affirmed on direct appeal, Ramirez filed a petition for postconviction relief in state court, but he did not raise a claim that his trial counsel had been ineffective in the particular respects that he now asserts. Id. at 1238. The state petition was denied. Id.

Ramirez then filed a federal habeas petition, the operative version of which raised the claim that trial counsel was ineffective in her presentation of mitigation evidence during the penalty phase. 937 F.3d at 1238. The federal district court initially denied the claim as procedurally defaulted, because Ramirez had failed to raise the claim during his initial state postconviction-relief proceeding. See Martinez Ramirez v. Ryan , 2010 WL 3854792 (D. Ariz. Sept. 28, 2010). While Ramirez's appeal from that decision was pending in this court, the Supreme Court issued its decision in Martinez , in which the Court held that a petitioner may establish "cause" to excuse a procedural default if the petitioner can show (1) that the petitioner's postconviction counsel was ineffective in failing to raise an ineffective-assistance-of-trial-counsel claim, and (2) that the underlying ineffective-assistance-of-trial-counsel claim is "substantial," that is, "has some merit." 566 U.S. at 14, 132 S.Ct. 1309. A panel of this court remanded for reconsideration of Ramirez's ineffective-assistance-of-trial-counsel claim "in light of intervening law."

On remand, Ramirez asked for an evidentiary hearing to develop evidence regarding whether his postconviction -relief counsel was ineffective, in order to establish "cause" for the default under Martinez . Ramirez acknowledged that 28 U.S.C. § 2254(e)(2) bars factual development of claims not developed in state court, but relying on our precedent in Dickens v. Ryan , 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc), he argued that the cause-and-prejudice question under Martinez is not a "claim" for purposes of § 2254(e)(2) and that evidence could be received to see whether the default could be excused under Martinez .

Ramirez also submitted declarations from various family members describing the truly deplorable conditions of his upbringing. Ramirez , 937 F.3d at 1238–39. Compared to the testimony that Siegel elicited during the original sentencing hearing, the new declarations paint a darker picture of the abuse and neglect that Ramirez's mother inflicted on her children. Ramirez also submitted a declaration from Siegel herself, in which she admitted that the mitigation evidence that she presented was "very limited." Id. at 1240. Finally, Ramirez submitted a declaration from Dr. McMahon, a psychologist whom the state trial court had appointed to evaluate Ramirez's mental health during the penalty phase of his criminal trial. Id. Dr. McMahon stated that Siegel failed to give him Ramirez's IQ scores or school reports and that, had she done so, he likely would have expanded his evaluation, and he would not have found that Ramirez was not intellectually disabled. Id.

The district court noted that, "for different reasons," both sides agreed that the court should consider the merits of Ramirez's ineffective-assistance-of-trial-counsel claim. As the court explained, the State argued that the lack of merit to that claim showed that postconviction counsel "did not perform ineffectively in failing to raise the claim in state court" and that the Martinez standard therefore could not be met. Ramirez, by contrast, argued that postconviction counsel was ineffective in failing to raise the claim and that the merits of that claim therefore had to be considered de novo. The court denied Ramirez's request for an evidentiary hearing, concluding that such a hearing was "not warranted" in light of the existing evidence, but the court accepted his newly submitted exhibits into the record. After comparing the evidence on mitigation presented at the penalty phase of Ramirez's trial to the information in the newly submitted exhibits, the court resolved the merits of the underlying claim, concluding that Siegel's performance was not deficient and that any deficiency did not prejudice Ramirez.

Ramirez again appealed to this court. The panel reversed, finding that the district court should not have "collapsed what should have been a two-step process": first evaluating whether the performance of Ramirez's postconviction counsel constituted ineffective assistance that excused the procedural default under Martinez , and only then addressing the...