The standard for “cause” articulated in Martinez v. Ryan (2012) 132 S.Ct. 1309 to excuse a state-court procedural default in federal habeas proceedings applies when the underlying ineffective assistance of counsel (IAC) is by appellate counsel. In a California trial court, Nguyen was convicted of felony drug possession and felony possession of a forged driver’s license. In his first state appeal, the forgery conviction was reduced to a misdemeanor. The trial court had imposed a life term for this count, but struck six serious felony priors on the remaining drug possession count. On remand the trial court reversed its earlier decision striking the priors, and imposed a life sentence on the remaining felony. At the time of the resentencing, however, Nguyen had already served the three-year sentence previously imposed for the drug possession conviction. On Nguyen’s second appeal, counsel raised abuse of discretion and cruel and unusual punishment claims, but failed to assert double jeopardy. After his judgment was affirmed in state court, Nguyen filed a pro per habeas petition in federal court that included a double jeopardy claim and an appellate-counsel IAC claim based on the failure to raise the double jeopardy claim on direct appeal. The federal district court ultimately denied the petition because the claims were procedurally defaulted under state law and Nguyen failed to show cause and prejudice under Coleman v. Thompson (1991) 501 U.S. 722. Nguyen appealed the district court’s denial of his habeas petition, arguing that his procedural default should be excused under the standard for “cause” articulated in Martinez. Held: Reversed and remanded.

Generally, a procedural default may be excused only if petitioner can demonstrate cause for the default and resulting prejudice under Coleman. In Martinez, the Court relaxed the Coleman standard in a small class of cases where (1) there is “substantial” trial-counsel IAC claim; (2) the “cause” consisted of there being no counsel or only ineffective counsel during the state collateral review proceeding; (3) the state collateral proceeding was the “initial” review proceeding for the IAC claim; and (4) state law makes it highly unlikely that the trial-counsel IAC claim can be raised on direct appeal. (See also Trevino v. Thaler (2013) 133 S.Ct. 1911.) The Sixth Amendment right to effective assistance of counsel applies equally to trial and appellate counsel. Martinez’s reasoning with respect to procedural default of a trial-counsel IAC claim is equally true for an appellate-counsel IAC claim. Thus, the Martinez “cause” standard likewise applies to all Sixth Amendment IAC claims, trial and appellate, “that have been procedurally defaulted by ineffective counsel in the initial-review state-court collateral proceeding.” [Editor’s Note: As observed in Nguyen, other circuits have held that Martinez is limited to claims of trial-counsel IAC. (See Banks v. Workman (10th Cir. 2012) 692 F.3d 1133; Dansby v. Norris (8th Cir. 2012) 682 F.3d 711, vacated sub nom. Dansby v. Hobbs (2013) 133 S.Ct. 2767.)]

Nguyen’s appellate-counsel IAC claim was timely. Nguyen filed a timely federal habeas petition alleging an exhausted cruel and unusual punishment claim and an unexhausted double jeopardy claim. After the expiration date of the statute of limitations for filing his federal habeas petition, he filed an amended petition realleging his original claims and adding his appellate-counsel IAC claim. The Ninth Circuit rejected the state’s argument the IAC claim was untimely. As Nguyen’s double jeopardy and appellate-counsel IAC claims shared a common core of facts with his cruel and unusual punishment issue, which was properly filed, they relate back to the timely filed petition.