2 F.4th 851
9th Cir.2021Background
- Dickinson was tried for attempted second-degree murder and related counts after evidence that he drove his truck into a bicyclist following prior threats and brandishing weapons; the jury convicted and the court imposed concurrent and consecutive terms.
- The trial court gave an instruction implying attempted second-degree murder could be based on intent to cause serious physical injury (not necessarily intent to kill), contrary to Arizona precedent (State v. Ontiveros); trial counsel did not object.
- On direct appeal (with new counsel) Dickinson raised the instructional error; the Arizona Court of Appeals found instructional error but no prejudice under Arizona’s fundamental-error standard; Arizona Supreme Court denied review.
- Dickinson’s state post-conviction counsel did not raise an ineffective-assistance-of-trial-counsel (IATC) claim based on the unobjected-to instruction; Dickinson later brought a federal habeas petition under 28 U.S.C. § 2254 raising due-process and IATC claims.
- The magistrate recommended Martinez excused the procedural default as to the IATC claim, but the district court rejected that recommendation, concluding Dickinson failed to show Strickland prejudice; Dickinson appealed only the denial of habeas relief as to the IATC/default issue.
- The Ninth Circuit affirmed, holding Dickinson did not establish a substantial IATC claim under Strickland and therefore Martinez did not excuse his procedural default.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Martinez v. Ryan excuses procedural default of Dickinson’s IATC claim | Martinez applies because post-conviction counsel failed to raise IATC; cause exists to excuse default | Martinez does not apply because the underlying IATC claim is not substantial (no Strickland prejudice) | Not excused: IATC claim not substantial, so Martinez does not overcome default |
| Whether loss of a more favorable standard of appellate review (due to counsel’s failure to object) can satisfy Strickland prejudice | Dickinson: prejudice may be shown by demonstrating appellate outcome would likely be different | Court: Strickland prejudice focuses on effect on trial outcome; loss of appellate standard alone is insufficient | Court rejects Dickinson’s appellate-prejudice theory |
| Whether counsel’s failure to object prejudiced the trial (i.e., reasonable probability jury convicted on invalid "serious injury" theory) | Dickinson: at least one juror could have relied on the erroneous portion and convicted without intent to kill | State: overwhelming trial evidence and arguments showed intent to kill; defense never advanced a theory of only intending to injure | Court held no reasonable probability verdict would differ; no Strickland prejudice at trial |
| Whether Dickinson’s IATC claim is a "substantial" claim under Martinez/Strickland | Dickinson: the instructional error + counsel’s omission made claim substantial | State: record and arguments show claim lacks merit; therefore post-conviction counsel was not ineffective for not raising it | Court: claim is not substantial; procedural default remains; habeas denied |
Key Cases Cited
- Martinez v. Ryan, 566 U.S. 1 (2012) (narrow exception excusing procedural default where initial-review collateral counsel was ineffective for failing to raise an IATC claim)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for constitutionally ineffective assistance: deficient performance and prejudice)
- Flores-Ortega v. United States, 528 U.S. 470 (2000) (presumption of prejudice where counsel’s error entirely deprives defendant of an appellate proceeding)
- Lockhart v. Fretwell, 506 U.S. 364 (1993) (Strickland prejudice focuses on whether counsel’s errors rendered the trial result unreliable)
- Davila v. Davis, 137 S. Ct. 2058 (2017) (federal habeas courts generally will not consider claims forfeited under adequate and independent state rules)
- Garza v. Idaho, 139 S. Ct. 738 (2019) (extends Flores-Ortega presumption where counsel’s error cost defendant an appeal the defendant would have pursued)
- Gray v. Lynn, 6 F.3d 265 (5th Cir. 1993) (example of a court finding Strickland prejudice where an erroneous instruction could plausibly have caused conviction on a lesser mens rea theory)
- Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019) (explains Martinez burden: post-conviction counsel deficient performance, reasonable probability of different result in collateral proceeding, and the underlying IATC claim must be substantial)