FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW RYAN SEXTON, 

No. 10-35055 Petitioner-Appellant,

D.C. No.

v. 3:06-cv-00209-AC

MIKE COZNER, Superintendent, 

ORDER AND MacLaren Youth Correctional AMENDED Facility, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

May 8, 2012—Portland, Oregon

Filed May 13, 2012

Amended May 14, 2012

Before: A. Wallace Tashima, Richard C. Tallman, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Tallman

5261
COUNSEL

Mark Bennett Weintraub, Assistant Federal Public Defender,

Eugene, Oregon, for petitioner-appellant Matthew Sexton.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor

General, and Janet A. Klapstein, Senior Assistant Attorney

General, Salem, Oregon, for respondent-appellee Mike Cozner, Superintendent, MacLaren Youth Correctional Facility.

ORDER

The opinion filed on May 13, 2012, is AMENDED as follows: The phrase “and Sexton does not present a substantial

claim that PCR counsel was ineffective” on page 17 of the

opinion is replaced with “and Sexton does not present a substantial claim that trial counsel was ineffective.”.

5264 SEXTON v. COZNER
An amended opinion will be filed concurrently with this

order.

OPINION

TALLMAN, Circuit Judge:

Matthew Ryan Sexton (“Sexton” or “Petitioner”), an Oregon state prisoner, appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition. He argues that trial

counsel’s advice regarding his guilty plea was constitutionally

inadequate, thereby rendering his plea unknowing or involuntary. Sexton also seeks a limited remand under the Supreme

Court’s recent decision in Martinez v. Ryan, 132 S. Ct. 1309

(2012), to allow the district court to review the merits of two

new claims for ineffective assistance of trial counsel that he

raised for the first time in his federal habeas petition, but that

the district court ruled were procedurally defaulted.

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,

and we deny Sexton’s motion for a limited remand and affirm

the denial of his § 2254 habeas petition.

I

We review the dismissal of a habeas petition and questions

regarding procedural default de novo. Ivy v. Pontesso, 328

F.3d 1057, 1059 (9th Cir. 2003); Sivak v. Hardison, 658 F.3d

898, 906 (9th Cir. 2011). If the state prisoner’s claim was

adjudicated on the merits in state court, we may grant habeas

relief only if the state court decision “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States,” 28 U.S.C. § 2254(d)(1), or if the state court

decision “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2).

SEXTON v. COZNER 5265
II

The pertinent facts regarding Sexton’s involvement in the

murders and the procedural history, as summarized by the district court, are as follows:

In 1998, when Petitioner was seventeen, he was

indicted on four counts of Aggravated Murder with

a Firearm in the deaths of his father and mother.

Petitioner confessed to shooting his parents and he

led police to the locations where he had left the

bodies. He later recanted, claiming his younger

brother shot his parents and that his confession was

to protect his brother. Following Petitioner’s recantation, counsel arranged for Petitioner to take a polygraph, but Petitioner failed it. Despite counsel

informing Petitioner the polygraph was not admissible and his recantation was a plausible defense, Petitioner confessed anew during the defense’s

psychological evaluation.

Plea negotiations led to the Aggravated Murder

charges being reduced and Petitioner pleading guilty

to two counts of intentional Murder, with the issue

of consecutive versus concurrent sentencing reserved

for the court following argument. Counsel hired a

nationally known expert on parricide who recommended Petitioner’s allegations of abuse by his

father be presented as a mitigating factor supporting

concurrent terms of imprisonment. Counsel also met

with the family on several occasions and understood

them to support concurrent sentencing, until the

issue of abuse as a mitigating factor was raised. At

the sentencing hearing, a number of family members

spoke in favor of consecutive sentencing, possibly in

response to Petitioner’s allegations of abuse. The

sentencing court imposed two consecutive life terms

of imprisonment under Ballot Measure 11, with a

5266 SEXTON v. COZNER
minimum of twenty-five years each without the possibility of parole.

Petitioner filed a direct appeal, challenging the

constitutionality of consecutive sentencing under

Ballot Measure 11, as applied to him. The Oregon

Court of Appeals affirmed the sentencing court without opinion, and the Oregon Supreme Court denied

review.

Petitioner filed for post-conviction relief (“PCR”),

raising seven claims of ineffective assistance of

counsel, and two claims alleging his pleas of guilty

were not knowingly, intelligently and voluntarily

made. He contended he pled guilty to the murders to

make his family happy and to protect his younger

brother, whom he alleged committed the murders.

The PCR trial court denied relief, issuing extensive

written findings. Petitioner appealed, but the Oregon

Court of Appeals affirmed without opinion, and the

Oregon Supreme Court denied review.

Sexton v. Cozner, No. 06-CV-209-AC, 2009 WL 5173714, at

*1-2 (D. Or. Dec. 21, 2009) (internal citations omitted).

Relevant here, the state PCR court rejected Sexton’s claim

that his trial counsel was constitutionally ineffective in representing to Sexton that his family members would support concurrent sentences, thereby rendering his guilty plea

unknowing and involuntary. The court found that the plea

agreement and transcript of the plea hearing showed that Sexton understood that it was within the discretion of the trial

judge to impose consecutive sentences, and he did not actually believe that he would get concurrent treatment based

upon trial counsel’s representation as to the anticipated family

recommendation. Further, the court held that Sexton would

have pleaded guilty in any event, and was not credible to the

extent he claimed otherwise. 

SEXTON v. COZNER 5267
Sexton was represented by appointed counsel in both the

direct appeal and in the PCR habeas proceeding before the

Oregon courts. At trial and on direct appeal, he was represented by attorney Kenneth Hadley. In the state PCR proceeding, he was represented by David Kuhns.

Sexton, however, filed a pro se federal habeas petition on

February 14, 2006, where he raised a number of issues. First,

Sexton argued, as he had in the state PCR court, that trial

counsel was ineffective because he failed to inform Sexton

that his family would likely support the prosecution’s position

that his sentences should be consecutive and that, as a result,

his guilty plea was unknowing and involuntary. Sexton also

raised two new claims of ineffective assistance of trial counsel that were not adjudicated in state court. Specifically, he

argued that trial counsel was ineffective because he (1)

arranged for Sexton to take a polygraph conducted by a law

enforcement examiner, and (2) provided to the District Attorney (“D.A.”) a full written account prepared by Sexton in

which he recanted his earlier confession to the murders and

claimed that his younger brother, Brian Sexton, killed his parents. 

On November 3, 2008, Sexton filed a Memorandum in

Support of the Federal Habeas Petition, where he argued he

received ineffective assistance of counsel because his attorney: (1) violated the attorney-client privilege by disclosing the

confidential recantation letter he received from Sexton; (2)

agreed to a non-confidential polygraph examination, which

Sexton failed and the results of which the judge relied on at

sentencing; and (3) misled Sexton into entering a guilty plea

by leading him to believe that his family would support concurrent sentences that would have made him eligible for

parole after twenty-five years. 

Magistrate Judge John V. Acosta issued Findings and Recommendations (“Report and Recommendation”) on September 11, 2009, in which he recommended that the district court

5268 SEXTON v. COZNER
deny Sexton’s habeas petition. As to the claim regarding ineffective assistance of trial counsel resulting in an involuntary

guilty plea, the Magistrate Judge held that the PCR court’s

factual findings that Sexton’s plea was knowing and voluntary

were presumed to be correct pursuant to 28 U.S.C.

§ 2254(e)(1), and that Sexton had not shown that the PCR

court’s rejection of this claim was contrary to or an unreasonable application of clearly established federal law. The Report

and Recommendation also concluded that Sexton’s ineffective

assistance of counsel claims regarding the disclosure of the

confidential recantation letter blaming his brother for the murders, and trial counsel’s decision to allow Sexton to be subjected to a state-administered polygraph without first

conducting a private polygraph, were procedurally defaulted

because Sexton failed to raise them during the state PCR proceedings. As a result, the Report and Recommendation concluded that Sexton failed to exhaust state remedies, and

because he did not attempt to excuse the procedural default,

habeas relief was precluded. 

Judge Anna J. Brown of the District of Oregon adopted the

Report and Recommendation and denied Sexton’s habeas

petition. On December 30, 2009, the district court denied a

certificate of appealability, stating that Sexton failed to make

a substantial showing of the denial of a constitutional right.

The district court dismissed the petition with prejudice the

following day. 

On July 18, 2011, we granted Sexton’s request for a certificate of appealability as to the issue whether Sexton’s trial

counsel’s advice regarding Sexton’s guilty plea was constitutionally inadequate, thereby rendering Sexton’s plea unknowing or involuntary. The parties subsequently submitted

briefing on that issue, and we set oral argument for May 8,

2012.

After briefing was completed in this case, but before we

had the opportunity to hear argument, the Supreme Court

SEXTON v. COZNER 5269
decided Martinez v. Ryan. On April 16, 2012, shortly after the

decision in Martinez, Sexton filed a Motion for Limited

Remand and to Strike the May 8, 2012, Oral Argument

(“Motion”). In that Motion, Sexton asked us to: (1) remand

the case to the district court to consider whether, in light of

Martinez, it would excuse the procedural default of his new

ineffective assistance of counsel claims; and (2) strike the oral

argument from the May 8, 2012, calendar; or (3) alternatively,

to expand the COA to address the Martinez issue in the first

instance. 

The Warden filed a supplemental brief opposing the

Motion on two grounds. First, the Warden argued that Sexton’s claims for which he seeks a limited remand do not fall

within the narrow exception created in Martinez for “substantial” legal claims; and second, that Sexton fails to demonstrate

that he was denied the opportunity to develop his ineffective

assistance of counsel claims at the PCR stage due to the ineffective assistance of his post-conviction trial counsel. 

On April 27, 2012, we denied Sexton’s motion to strike

oral argument, deferred consideration of his argument on the

merits and his motion for a limited remand until after oral

argument, and directed the parties to be prepared to address

whether Martinez applies here and if limited remand to the

district court is necessary. We also deferred until after oral

argument our decision to issue a Certificate of Appealability

regarding the uncertified Martinez issue. We expand the Certificate of Appealability to address this issue, 9th Cir. R.

22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.

1999) (per curiam), but deny all relief.

III

Sexton argues that his guilty plea was unknowing and

involuntary because trial counsel was ineffective in failing to

advise him that his family would likely oppose concurrent

sentences. We disagree and hold that the advice provided by

5270 SEXTON v. COZNER
trial counsel with regard to Sexton’s guilty plea was constitutionally adequate under Strickland v. Washington, 466 U.S.

668 (1984), and that Sexton’s plea was knowing and voluntary as a result. Because Sexton’s claim fails under de novo

review, it necessarily fails under AEDPA’s deferential

review. Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010).

[1] Sexton cannot establish that his attorney’s performance

fell below an objective standard of reasonableness, or that

there is a reasonable probability that, but for his counsel’s

errors, he would not have pleaded guilty and would have

insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52,

57-59 (1985); Strickland, 466 U.S. at 687. First, Sexton fails

to show that Hadley performed deficiently by failing to

inform Sexton at the time he pleaded guilty that some members of the victims’ family might support the prosecution’s

recommendation that Sexton’s sentences should run consecutively. Sexton swore in open court that his guilty plea was not

the result of any promises not specified in the plea agreement,

see Weaver v. Palmateer, 455 F.3d 958, 968-69 (9th Cir.

2006), and expressly acknowledged that the ultimate decision

as to the appropriate sentence lay solely with the court. Moreover, defense counsel’s decision to discuss Sexton’s history as

a victim of parental abuse, which allegedly caused certain

members of the victims’ family to abandon their support for

Sexton’s sentences to run concurrently, was a strategic decision that cannot form the basis of a claim for ineffective assistance of counsel. Strickland, 466 U.S. at 689.

[2] Second, the record does not support Sexton’s assertions

that but for his counsel’s failure to advise him of his family’s

position on sentencing, he would not have pled guilty and

would have insisted on going to trial. Hill, 474 U.S. at 59;

Lambert v. Blodgett, 393 F.3d 943, 979-80 (9th Cir. 2004);

Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997). At the

plea hearing, Sexton stated he understood that each count of

intentional murder carried a mandatory sentence of life

imprisonment with a minimum of twenty-five years imprisonSEXTON v. COZNER 5271
ment. He acknowledged that the sentences could run consecutively or concurrently, and that he could “face a maximum

potential penalty of up to fifty years imprisonment as a minimum sentence if the [ ] sentences [were] made to run consecutive[ly].” He affirmed that the only promises made to him

were contained in the plea agreement, which clearly informed

Sexton that the judge was not bound by sentencing recommendations and could impose concurrent or consecutive sentences. Under these circumstances, Sexton cannot

demonstrate that he was prejudiced by his attorney’s prediction. Womack, 497 F.3d at 1003-04.

[3] Finally, the state court’s adverse credibility finding was

not unreasonable or incorrect by clear and convincing evidence. Miller-el v. Cockrell, 537 U.S. 322, 340 (2003); Weaver, 455 F.3d at 969. The PCR court, after reviewing the

transcript of the sentencing, the plea document, the deposition

testimony of Sexton, the affidavit of trial counsel, and sixtytwo exhibits admitted into evidence, concluded Sexton was

not credible.1 We must defer to that finding of fact, because

Sexton has not presented clear and convincing evidence to

rebut the PCR court’s adverse determination that he was not

credible. 28 U.S.C. § 2254(d) and (e)(1). 

[4] Because Sexton has not established that he received

ineffective assistance of counsel under de novo review, a fortiori he has not shown that the PCR court’s rejection of this

claim was contrary to, or an unreasonable application of,

1We note that Sexton has told different stories about what happened on

July 14, 1998, the night of the murders. He confessed to sheriffs’ deputies

that he laid in wait and killed his parents. Then he recanted before his plea,

insisting to his defense lawyer that his younger brother did it. When he

failed the polygraph, he reverted to the first confession by once again

admitting his guilt to the defense psychologist, who testified in mitigation

at his sentencing proceeding. Then, when he was represented by a new

lawyer during the State post-conviction proceedings, he once again

asserted that he was innocent. This constant prevarication led to the

adverse credibility finding on post-conviction review. 

5272 SEXTON v. COZNER
clearly established federal law. See Berghuis, 130 S. Ct. at

2264; see also Cooper v. Brown, 510 F.3d 870, 885 n.10, 919

(9th Cir. 2007). Therefore, we may not grant habeas relief on

this claim. See 28 U.S.C. § 2254(d).

IV

[5] Sexton argues that this case should be remanded to the

district court following the Supreme Court’s decision in Martinez, 132 S. Ct. at 1309. We address whether remand is

appropriate in this case, where the district court found that an

ineffective assistance of counsel claim was procedurally

defaulted as a result of PCR counsel’s failure to raise the

claim in state court, despite having raised seven other ineffective assistance of counsel claims at the PCR stage. 

Sexton is entitled to a remand if he can show that PCR

counsel was ineffective under Strickland for not raising a

claim of ineffective assistance of trial counsel, and also “that

the underlying ineffective-assistance-of-trial-counsel claim is

a substantial one . . . .” Martinez at 1318. In order to show

ineffectiveness of PCR counsel, Sexton must show that PCR

counsel’s failure to raise the claim that trial counsel was ineffective was an error “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment,” and caused Sexton prejudice. Strickland, 466

U.S. at 687. Counsel is not necessarily ineffective for failing

to raise even a nonfrivolous claim, Knowles v. Mirzayance,

556 U.S. 111, 127 (2009), so clearly we cannot hold counsel

ineffective for failing to raise a claim that is meritless.

Accordingly, a PCR counsel would not be ineffective for failure to raise an ineffective assistance of counsel claim with

respect to trial counsel who was not constitutionally ineffective. Further, “[t]o overcome the default, a prisoner must also

demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the

prisoner must demonstrate that the claim has some merit.” Id.

SEXTON v. COZNER 5273
(citing Miller-El v. Cockrell, 537 U.S. 322 (2003) (emphasis

added)). 

We therefore examine the record to determine whether

there is sufficient evidence before us on the necessary showing under Martinez—ineffective assistance of PCR counsel

(due to failing to raise ineffective assistance of trial counsel)

that would allow us to decide whether Sexton has demonstrated “cause.” Only if we determine that Sexton has demonstrated cause, would we proceed to determine if Sexton has

demonstrated prejudice to meet the “cause and prejudice”

standard, and has also demonstrated a “substantial claim of

ineffective assistance at trial,” id. at 1321. As the Supreme

Court explained in Martinez:

To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-oftrial-counselclaim is a substantial one, which is to

say that the prisoner must demonstrate that the claim

has some merit.

Id. at 1318 (citation omitted). We hold that in light of the

record in this case, remand to the district court is not proper

under Martinez because Sexton does not meet the narrow circumstances recently announced by the Supreme Court necessary to show “cause,” the first prong necessary to avoid the

procedural bar.

A

Generally, “a state prisoner’s failure to comply with the

state’s procedural requirements in presenting his claims is

barred from obtaining a writ of habeas corpus in federal court

by the adequate and independent state ground doctrine.”

Schneider v. McDaniel, 674 F.3d 1144, 1152 (9th Cir. 2012)

(citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).

Specifically, the Supreme Court has held:

5274 SEXTON v. COZNER
In all cases in which a state prisoner has defaulted

his federal claims in state court pursuant to an independent and adequate state procedural rule, federal

habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of

justice.

Coleman, 501 U.S. at 750 (emphasis added).

“Cause” under Coleman, “must be something external to

the petitioner, something that cannot be fairly attributed to

him.” Id. at 753 (emphasis in original); see also Schneider,

674 F.3d at 1153 (“Unless the prisoner received ineffective

assistance of counsel, cause is ordinarily shown by demonstrating that some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural rule.” (internal citation and quotation marks omitted)).

To demonstrate “prejudice,” a habeas petitioner must “establish [ ] that the constitutional errors worked to his actual

and substantial disadvantage, infecting his entire trial with

error of constitutional dimensions.” Schneider, 674 F.3d at

1153 (internal quotation marks omitted).

In evaluating ineffective assistance of counsel claims in

habeas proceedings, we have cited Coleman for the proposition that an attorney’s negligence in a post-conviction proceeding did not establish “cause,” and therefore the

negligence was insufficient to excuse procedural default. See

Towery v. Ryan, 673 F.3d 933, 941 (9th Cir. 2012) (“A federal habeas petitioner—who as such does not have a Sixth

Amendment right to counsel—is ordinarily bound by his

[PCR] attorney’s negligence, because the attorney and the client have an agency relationship under which the principal is

bound by the actions of the agent.”) (citing Coleman, 501

SEXTON v. COZNER 5275
U.S. at 753 (“Attorney ignorance or inadvertence is not

‘cause’ [for excusing procedural default] because the attorney

is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk

of attorney error.” (internal citation and quotation marks omitted))).

Our analysis, however, is now subject to a limitation following the Supreme Court’s decision in Martinez, where the

Court announced a “narrow exception” to its decision in Coleman by holding that:

Where under state law, claims of ineffective assistance of trial counsel must be raised in an initialreview collateral proceeding, 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.

Martinez, 132 S. Ct. at 1320 (emphasis added). 

In acknowledging this “limited qualification” to the Coleman rule, the Supreme Court in Martinez reaffirmed the general holding in Coleman: “that an attorney’s negligence in a

postconviction proceeding does not establish cause . . .

remains true except as to initial-review collateral proceedings

for claims of ineffective assistance of counsel at trial.” Id. at

1319 (emphasis added). In applying this standard, Martinez

made clear that a reviewing court must determine whether the

petitioner’s attorney in the first collateral proceeding was

ineffective under Strickland, whether the petitioner’s claim of

ineffective assistance of trial counsel is substantial, and

whether there is prejudice. Id. at 1321. 

[6] For the purposes of our review in this case, therefore,

Martinez instructs that Sexton may establish cause for his pro5276 SEXTON v. COZNER
cedural default of his new ineffective assistance of trial counsel claims, because the State of Oregon required Sexton to

raise them in a collateral proceeding, State v. Robinson, 550

P.2d 758 (Or. App. 1976).

B

We now look to the record to verify if the ineffective assistance of PCR counsel claim is sufficiently worthy to merit

further consideration. To establish that PCR counsel was ineffective, Sexton must show that trial counsel was likewise ineffective, and that PCR counsel’s failure to raise trial counsel’s

ineffectiveness in the PCR proceeding fell below an objective

standard of reasonableness. If trial counsel was not ineffective, then Sexton would not be able to show that PCR counsel’s failure to raise claims of ineffective assistance of trial

counsel was such a serious error that PCR counsel “was not

functioning as the ‘counsel’ guaranteed” by the Sixth Amendment. Strickland, 466 U.S. at 687. 

Here, we are satisfied that trial counsel was not ineffective.

Thus, there was no Strickland violation, no reason for Sexton’s subsequent PCR counsel to pursue those additional

claims, and Sexton does not present a substantial claim that

trial counsel was ineffective. 

To establish an ineffective assistance of counsel claim,

Sexton must show: (1) that counsel’s performance was deficient; and (2) that the deficient performance prejudiced his

defense. Strickland, 466 U.S. at 687; Ben-Sholom v. Ayers,

674 F.3d 1095, 1100 (9th Cir. 2012). “To establish deficient

performance,” as the Supreme Court recently summarized in

Premo v. Moore, “a person challenging a conviction must

show that counsel’s representation fell below an objective

standard of reasonableness.” 131 S. Ct. 733, 739 (2011)

(internal citation and quotation marks omitted). We strongly

presume “that counsel’s representation was within the wide

range of reasonable professional assistance.” Id. To establish

SEXTON v. COZNER 5277
“prejudice,” a petitioner “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

With Martinez’s “narrow exception” and the Strickland test

in mind, we turn to the record presently before us to determine if Sexton has established cause and prejudice by evaluating Sexton’s new ineffective assistance of counsel claims.

1

Sexton argues that Kuhns failed to set forth an ineffective

assistance of counsel claim by Hadley, who allegedly

breached the attorney-client privilege when he disclosed to

the D.A. the confidential letter blaming his brother, and failed

to conduct a private polygraph examination before subjecting

Sexton to a polygraph administered by the State. Sexton

insists Hadley’s decisions were incompetent and prejudicial

because the sentencing judge relied on that information in

determining that Sexton’s sentences should run consecutively.2

We disagree.

[7] The record reveals that Hadley’s decision to proceed

with the State’s preferred polygrapher was a reasonable tactical decision that cannot form the basis of a claim for ineffective assistance of counsel. Strickland, 466 U.S. at 689. In an

affidavit prepared for the PCR proceedings, Hadley explained

that he “accepted Matthew’s recantation completely” when

his client stated he had not killed his parents. Further, because

2At sentencing, the judge stated: 

I’m not optimistic about this defendant’s likelihood of rehabilitation. In addition to the lack of remorse and regret, this defendant also apparently was willing just a short time ago to deny any

responsibility for these crimes and, in fact, to falsely accuse his

younger brother of committing these heinous crimes. 

5278 SEXTON v. COZNER
the D.A. in charge of Sexton’s case was elected to the Oregon

Circuit Court and was preparing to turn over his old position

to his deputy, Hadley felt that he had to seize the opportunity

quickly because he thought he had a better chance of convincing the outgoing D.A. to drop the charges against Sexton or

at least to mitigate the sentence. In so doing, he requested the

polygraph because he knew the outgoing D.A. would accept

a “pass” where other prosecutors might not. He agreed that

Sexton’s polygraph be administered by a member of the

Salem Police Department—who had on prior occasions

passed two of Hadley’s former clients, resulting in dismissal

of all charges or greater leniency in a plea bargain—in hopes

of achieving a similar result for Sexton. Further, Hadley

explained to Sexton that the results of the polygraph test were

not admissible as evidence in the State’s case-in-chief. As a

result, even though Sexton failed the polygraph, Hadley

informed Sexton that they could go to trial and “had a decent

chance to get him acquitted.” Sexton, however, “went back to

his original confession during his interview with [the] defense

psychologist.”

[8] Further, Hadley’s decision to give the D.A. the letter

from Sexton—where Sexton expressed he was innocent, and

that his brother, Brian Sexton, had in fact committed the

murders—was also strategic. The letter was protected from

use at trial by the State under the privilege surrounding statements made during plea negotiations, see Or. Rev. Stat.

§ 135.435(1)(c) (“Any statement or admission made by the

defendant or the attorney of the defendant to the district attorney and as a part of the plea discussion or agreement,” shall

not “be received in evidence for or against a defendant in any

criminal or civil action or administrative proceeding.”), and

could have swayed the D.A. to drop the charges against Sexton or mitigate the punishment. 

[9] As a result, given the extensive record before us on this

point, we fail to see how Hadley’s representation fell below

an objective standard of reasonableness. Premo, 131 S. Ct. at

SEXTON v. COZNER 5279
739. In addition, because Sexton repeatedly vacillated

between guilt and innocence for the murders, he fails to show

that there is a reasonable probability that, but for Hadley’s

alleged unprofessional errors, the result of the proceeding

would have been different. Strickland, 466 U.S. at 694.

Because Hadley’s performance was neither deficient nor

caused Sexton prejudice, it was not ineffective assistance of

counsel as defined in Strickland.

2

[10] Because the record before us regarding Hadley’s representation is sufficiently complete for us to hold without hesitation that Hadley was not ineffective under Strickland, we

hold that PCR counsel, Kuhns, similarly could not have been

ineffective for failing to raise the ineffective assistance of

counsel claim in state court. Even without the “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance,” we conclude that Kuhns’s

representation of Sexton could not fall “below an objective

standard of reasonableness,” merely because he declined to

raise meritless claims that Hadley was ineffective. Strickland,

466 U.S. at 688.

[11] Because Sexton has not shown that Kuhns was ineffective, he has not shown cause to excuse his procedural

default, and therefore, has not shown that his case warrants

remand under Martinez. There may be cases where the record

is devoid of sufficient information necessary to evaluate

whether PCR counsel was ineffective and, as a result, remand

under Martinez would be necessary. However, due to the

extensive record already before us, that is not the case here.

Consequently, we hold that Sexton has not met the standard

of showing “cause and prejudice” under Martinez to excuse

the procedural default that otherwise bars his litigation of the

two new grounds to support his ineffective assistance of counsel claim regarding Kuhns. If Hadley was not ineffective

before the plea, Kuhns could not have been ineffective on

5280 SEXTON v. COZNER
habeas appeal for failing to raise these two additional claims

at the PCR stage before the Oregon courts.

V

The advice provided by trial counsel with regard to Sexton’s guilty plea was constitutionally adequate and Sexton’s

plea was knowing and voluntary as a result. Sexton knew at

the time he pled guilty that it was possible the sentences

would run consecutively. 

[12] We deny Sexton’s Motion for a Limited Remand

because our reading of Coleman, in conjunction with Martinez, leads us to the conclusion that, in light of the extensive

record before us regarding the two new claims for ineffective

assistance of counsel, Sexton cannot meet the “narrow circumstances” exception recognized in Martinez to show

“cause and prejudice.” Consequently, Sexton fails to overcome the procedural bar under Coleman.

PETITIONER’S MOTION FOR A LIMITED REMAND IS

DENIED and THE DISMISSAL OF HIS FEDERAL HABEAS PETITION IS AFFIRMED.

SEXTON v. COZNER 5281