United States District Court, D. Nevada
the court is petitioner Blake's motion for evidentiary
hearing in this habeas proceeding under 28 U.S.C. §
2254. ECF No. 176. Blake seeks to present evidence in support
of ineffective assistance of counsel (IAC) claims alleged
under Grounds One through Four of his second amended habeas
petition (ECF No. 124). According i:o Blake, the evidence
will demonstrate that his default of the claims should be
excused under Martinez v. Ryan, 566 U.S. 1 (2012),
and that the claims warrant habeas relief.
28 USC § 2254(e)(2), a petitioner is generally not
entitled to evidentiary development on a claim for relief
where the petitioner "failed to develop the factual
basis of a claim in State court proceedings" due to
"a lack of diligence, or some greater fault,
attributable to the prisoner or the prisoners counsel."
The Ninth Circuit has held, however, that § 2254(e)(2)
"does not bar a hearing before the district court to
allow a petitioner to show 'cause* under
Martinez" because a petitioner seeking to show
cause based on ineffective assistance of post-conviction
review (PCR) counsel is not asserting a claim for relief.
Dickens v. Ryan, 740 F.3d 1302, 1321 (9th
Cir. 2014). The court explained:
[A] petitioner, claiming that PCR counsel's ineffective
assistance constituted "cause," may present
evidence to demonstrate this point. The petitioner is also
entitled to present evidence to demonstrate that there is
"prejudice," that is that petitioner's claim is
"substantial" under Martinez. Therefore, a
district court may take evidence to the extent necessary to
determine whether the petitioner's claim of ineffective
assistance of trial counsel is substantial under
Ninth Circuit has explained the showing a petitioner must
make to take advantage of Martinez.
Where, as here, the state criminal justice system satisfies
the characteristics required by Martinez, the
petitioner must make two related showings about the strength
of his particular IAC claim to excuse its default.
First, the IAC claim must be "a substantial one, which
is to say that the prisoner must demonstrate that the claim
has some merit." Martinez, 132 S.Ct. at 1318.
Thus, there must be a substantial showing of a
"reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." See Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). "A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id. When a defendant challenges a
death sentence such as the one at issue in this case, the
question is whether there is a reasonable probability that,
absent the errors, the sentencer... would have concluded that
the balance of aggravating and mitigating circumstances did
not warrant death." Id. at 695, 104 S.Ct. 2052.
Second, a petitioner must show that "appointed counsel
in the initial-review collateral proceeding, where the claim
should have been raised, was ineffective under the standards
of Strickland v. Washington." Martinez, 132
S.Ct. at 1318. Construing Martinez, we have held
that, to fulfill this requirement, a petitioner must show not
only that PCR counsel performed deficiently, but also that
this prejudiced the petitioner, i.e., that "there was a
reasonable probability that, absent the deficient
performance, the result of the post-conviction proceedings
would have been different." Pizzuto v. Ramirez,
783 F.3d 1171, 1178 (9th Cir. 2015) (quoting Clabourne v.
Ryan, 745 F.3d 362, 367 (9th Cir.), proceedings
suspended and mandate stayed (Apr. 2, 2014), and
overruled on other grounds by McKinney v. Ryan, 813 F.3d
798, 818 (9th Cir. 2015) (en banc)). Although the
prejudice at issue is that in PCR proceedings, this is a
recursive standard. It requires the reviewing court to assess
trial counsel's as well as PCR counsel's performance.
This is because, for us to find a reasonable probability that
PCR counsel prejudiced a petitioner by failing to raise a
trial-level IAC claim, we must also find a reasonable
probability that the trial-level IAC claim would have
succeeded had it been raised.
v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016)
his motion, Blake identifies the following "proposed
subjects" for an evidentiary hearing: (1) experts on
fetal alcohol spectrum disorders (FASD) and institutional
risk of future dangerousness; (2) neuropsychological and
psychological / trauma experts; (3) family, friends, and
trial counsel; and (4) "cause" under
Martinez. The court will address each subject in
Expert on FASD.
Claim Two(C) of his second amended petition, Blake alleges
that his trial counsel was ineffective in failing to
investigate and obtain the services of an expert on FASD. ECF
No. 124, p. 45-49. As evidentiary support for this claim, he
has proffered the declaration of Natalie Novick-Brown, Ph.D.,
a professed expert on FASD. ECF No. 125-10, p. 121-35.
According to the declaration, Blake's counsel provided
Novick-Brown "with preliminary information and materials
relevant to this matter on February 14, ." Id., p.
123. Based on that information, Novick-Brown "concluded
that a diagnosis of an FASD condition is highly likely once
Alfonso Blake undergoes medical assessment."
Id., p. 124. Later in the declaration, she states
"there is abundant preliminary information in the few
records reviewed for this declaration to suppor: a conclusion
that an FASD diagnosis is LIKELY." Id., p. 130.
does not claim, nor does the record indicate, that the
"medical assessment" referred to in the declaration
or any additional inquiry has ever been conducted. For the
purposes Strickland, "Speculation about what an
expert could have said is not enough to establish
prejudice." Grisby v. Blodgett, 130 F.3d 365,
373 (9th Cir. 1997). Inconclusive new evidence
that a petitioner may or may not suffer from some sort of
cognitive dysfunction does not generally establish an
ineffective assistance of counsel claim. See Smith v.
Quarterman, 515 F.3d 392, 405 (5th Cir.
2008). Thus, even taken at face value, Novick-Brown's
declaration falls well short of establishing a reasonable
probability that the results of Blake's PCR proceeding
would have been different had state PCR counsel advanced
Claim Two(C) in Blake's initial-review collateral
proceeding. Accordingly, this court sees no reason to grant
an evidentiary hearing in relation to Novick-Brown's
Expert on institutional risk of ...