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Blake v. Filson

United States District Court, D. Nevada

March 21, 2019



         Before 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.

         Under 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 Martinez.


         The 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.

         Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016) (footnote omitted).

         With 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 turn.

         1. Expert on FASD.

         In 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, [2011]." 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.

         Blake 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 assessment.

         2. Expert on institutional risk of ...

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