Summary
The Ninth Circuit denied panel rehearing and rehearing en banc in Michael Ray Hogan’s federal habeas corpus case. Judges Berzon and Bybee stated that the panel properly applied the narrow Martinez v. Ryan exception to procedural default in this pre-AEDPA capital case, while Judge Bress, joined by several judges, dissented on the ground that the panel improperly expanded Martinez to successive state postconviction proceedings.
Topics
Practice areas
Questions Presented
- Whether panel rehearing should be granted.
- Whether rehearing en banc should be granted where the petition failed to obtain a majority vote of non-recused active judges.
- Whether the panel's application of the Martinez v. Ryan exception to procedural default warranted reconsideration.
Holdings
- The petition for panel rehearing and rehearing en banc was denied.
Key quotations
“The matter failed to receive a majority of votes of non-recused active judges in favor of en banc consideration.” (at 3)
“A petitioner may overcome procedural default by “demonstrat[ing] ‘cause’ to excuse the procedural defect and ‘actual prejudice’ if the federal court were to decline to hear his claim.”” (at 5)
“The Supreme Court, however, established a limited exception to this rule in Martinez, holding that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”” (at 5–6)
“The dissent’s objection is fundamentally a demand for exhaustion.” (at 9)
“Because our decision rests on alleged attorney error in the initial-review collateral proceeding, not error in the second or successive collateral proceeding, it remains properly within the bounds of Martinez.” (at 10)
Factual background
Hogan was convicted of first-degree murder and attempted murder in Nevada and sentenced to death. His federal habeas litigation involved claims of ineffective assistance of trial counsel that were raised in third and fourth state postconviction petitions many years after his conviction became final. The Ninth Circuit panel held that alleged ineffective assistance by counsel in Hogan's initial state postconviction proceeding could potentially serve as cause under Martinez v. Ryan, and remanded for further proceedings.
Procedural history
Hogan was convicted and sentenced to death in Nevada state court. After multiple state postconviction proceedings and a federal habeas proceeding involving repeated amendments and stays, the Ninth Circuit panel affirmed in part and reversed in part the district court's denial of habeas relief, holding that ineffective assistance by Hogan's first state postconviction counsel could potentially establish cause under Martinez v. Ryan for claims raised in later state postconviction petitions. Nevada petitioned for panel rehearing and rehearing en banc. The panel denied panel rehearing, and the full court denied rehearing en banc because the petition failed to receive a majority vote of non-recused active judges.