F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

H A V A N N G U Y E N , Petitioner-Appellant
,

v.

B E N C U R R Y , R espondent-Appellee

. No. 11-56792

D.C. No. 8:08-cv-00198-J ST-F F M

OPI NI ON

Appeal from the United States District Court for the Central District of California J osephine Staton Tucker, District J udg e, Presiding

Arg ued and Submitted J u ne 4, 2013—Pasadena, California

F iled December 4, 2013

B efore: Stephen S. Trott and W illiam A. F letcher, Circuit J udg es, and Sidney H. Stein, District J udg e. *

Opinion by

J udg e W

. F letcher

* T h e Ho n o rab le S i d n ey H

. Stein
, District J u d g e f o r th e U.S. District Co urt f o r th e So u th ern District o f New Yo rk , sittin g b y

d esig n atio n

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SUMMARY * *

Habeas Corpus

The p anel reve r s ed the district c ourt’s denial of a 28 U.S.C. § 2 2 54 habeas c orpus petition and remanded for consideration in lig ht of the Supreme Court’s intervening decision in Martinez v. Ryan , 132 S. Ct. 1309 (2012).

A fter his direct a

ppeal concluded and counsel withdr e w from the case, petitioner filed a pro se § 2254 p e t i tion that included a procedurally defaulted D ouble J eopardy c laim. The district court stay ed and abey e d pro c eeding s to allow petitioner to ex haust this c l ai m i n state court, as w ell a s a claim that a

ppellate counsel w as ineffective for failing to raise the Double J eopardy claim. T h e state court denied the
state h abeas petition as u ntimely
, and petition e r f i l ed an amended § 2254 petition raising both procedurally defaulted claims. The panel held that Martinez applies to i n effective assistance of appellate counsel as well as trial cou n s e l

. T he panel further h eld that petitioner’s ineffe c t i ve assistance o f appellate counsel claim r elated back t o t h e orig inal § 2254 petition and was therefore timely

. The p a n el r e manded for the district court to consider in the first instance whether the procedural d efault of either claim may be ex cused under Martinez

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.N G U Y E N V

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COUNSEL

Patricia A

. Youn g ( argued), F ederal Public Defender’s Office, L os Ang eles, California, for Petitioner-Appellant.

Matthew Mulford (arg

ued), Office of the California Attorney General, San Dieg o, California, for Respondent-Appellee.

OP INION

W

. F L ETCHER, Circuit J udg e:

Ha V an Ng uy en appeals the distr i c t court’s d enial of his petition f or a writ of habeas corpus under 28 U.S.C. § 2254. The d istrict court denied two of his three c laims a s procedurally defaulted. N g uy e n contends that his procedural default should be ex cused under the standard for “cause” articulated in Martinez v. Ryan
, 1 32 S. Ct. 1309 (2012). The S u p reme Court in Martinez established an equitable rul e under which the failure of an ineffective counsel or pro se petitioner to raise, in a state court initial-re v i ew collateral proceeding
, a claim of ineffective assistance of counsel (“I AC”) at trial ca n be “cause” to ex cuse a state-court procedural default. The question before u s i s whether Martinez a

pplies to t h e failure to r aise not only a claim o f trial-counsel I AC, but also a claim of appellate-counsel I AC. W e c onclude that it does. W e r emand t o a l l o w the district

c o u rt to d etermine in the first instance whether Ng uy en ’s state-court p rocedural d efault should be ex cused under Martinez

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I . B ackg round

On F e bruary 2 6, 2 003, Orang e C o unty Sheriff Department d e puties found N g uy e n asleep b e hind the wheel of his car, stopped a t a gr e e n traffic lig ht. After he was awakened, Ng uy en identified himself to the deputies using a false name and fals e identification. N g uy en consented to a search of the car. The off i c e rs found two pieces of rock cocaine that Ng

uy en was hiding in his fist. They also found

a social s ecurity card bearing the n ame “Kevin Lu,” as w ell

as three driver’s licenses bearing different name s , i ncluding that of L u.
Ng uy en wa s c o n v icted after a jury trial in California Superior Court of felony cocaine p ossession
, C a l. Health & Safety Code § 11350(a) ( “Count One”); felony p o ssession o f

a forg ed driver’s license w ith intent to facilitate forg ery , Cal. Penal Code § 4 70b (“Count Two”); and mis d e m e anor false identification to a peace officer, Cal. Penal Code § 1 4 8

. 9(a) (“Count Three”). The trial c ourt found that Ngu y e n h ad previously b een c onvicted of six qualify ing felonies a nd was therefore elig ible to be sentence d p u rsuant to California’s three-strikes law. See Cal. Penal Code § 667. The court imposed a three-strikes sen t e n ce o f 25 y ears to life o n the forg ery conviction, Count Two. T h e court struck the prior convictions for the felony cocaine possession conviction, Count One, and imposed a three-year c oncurrent sentence on that count. The misdemeanor conviction, Count Three, was irrelevant to the three-strikes sentence.

On appeal, Ng uy en’s counsel argued that the prosecution had p r esented insufficient evidence at trial to sup p ort a conviction on Count Two. T h e California Court of Appeal
ag reed. I t reduced Ng uy en’s conviction on Count Two toN G U Y E N V

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m i s demeanor display o f a f raudulent driver’s license, Cal

. Veh. Code § 14610(a)(1), and r emanded for r esentencing

. On

r e m a n d
, the trial court reversed its earlier decision to stri k e Ng uy en’s prior convictions for purposes of sentencing under Count One. T he court then resentenced N g uy en under Count One to a three-strikes sentence of 25 y ears to life. At the time of his resentencing under Count One, Ng uy en had already served the three-year concurrent sentence previously imposed for that count. The trial court suspended Ng uy en’s sentence f o r Counts T wo a

n d T hree, both of which were n o w misdemeanor convictions. Ng uy e n’s trial counsel objected that the n ew sentence o n Count One was a “viol a t i o n of the F ifth, Six th and F o urteenth Amendme n t s

. . . in that

. . . it increases the orig inal punishment on Count One.”

Ng uy en appeale d ag ain. Ng u y en’s c ourt-appointed counsel o n his second a

ppeal a rg ued that the trial court’s decision to reinstate h is prior felony convictions for purposes of resentencing under Count One was an abuse of discretion under state law. She a lso argued that a 2 5

- y ears-to-life
sentence for Count O ne—felony possession of cocaine—was
g rossly disproportionate to the c r i m e, constituting c ruel a nd unusual p unishment under the Eig hth Amendment. She did
not make a double jeopardy argument u n d er the F ifth Amendment. The California Court of Appeal affirme d Ng uy en’s sentence, and the California Supreme Court denied his petition for review.

Ng uy en’s co u nsel on his second appeal sent a letter to Ng uy en after the California Supreme Court denied his petition. She wrote that her “appointment as [ his] attorney ha[ d] now come to an end.” She informed Ng uy en that if he “wish[ ed] to g o on to federal c ourt [ h e] must do so on [ his]N G U Y E N V

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own.” She did no t m en t i o n the possibility of filing a state habeas petition.

Now w ithout counsel, N g uy e n did not file a petition for habeas corpus in state c ourt. I n stead, he filed a timely pro se h a b e as petition in federal c ourt under 28 U .S.C. § 2254. Ng uy en asserted two claims: (1) his n ew sentence v i o lated the Eig hth Amendment’s p rohibition ag ainst cru e l a nd unusual punishment, and ( 2) his new sentence on Count One violated his F ifth Amendment r i gh t to b e free from double jeopardy

. The first claim h ad been ex hausted in s t a t e c ourt; the second claim had n ot. The m a gi s t r a te judg e g ranted a stay and abey ance of his f ederal habeas proceeding s to allow Ng uy en to ex haust his double jeopardy claim. The mag istrate judg e also g ranted a stay a n d a b ey ance for an additional claim that appellate c ounsel on his s e c ond appeal had been ineffec t i v e in f

ailing to raise a double jeopardy claim. The
mag istrate judg e characteriz e d both t h e d ouble jeopardy claim and the additional appellate-coun s e l I AC claim based

on the failure to r ais e t he d ouble jeopardy claim a s “potentially

meritorious.”

Ng uy en filed a petition for habeas corpus directly with the California Supreme Court, seeking review of th es e two

unex h a us t e d claims. The California Supreme Court summarily denied the petition, citing In re Clark
, 855 P.2d 729 (1993). A summary d enial citing Clark indicates that the California Supreme Court rejects a petition as untimely rather than on the merits. W

alker v. Martin
, 131 S. Ct. 1120, 1126 (2011).

Ng uy en then f

i l e d an amended federal habeas petition, after the ex pirat i o n of the statute of limitations, asserting three claims for relief: (1) t he non-defaulted cruel a ndN G U Y E N V

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unusual punishment claim; (2) the procedu r a l ly defaulted double jeopardy claim
, and (3) the procedurally defaulted appellate-counsel I A C claim based on the failure to raise the double jeopardy claim. Claims ( 1 ) and (2) had been contained in the orig inal, timely filed f e d eral habeas petition. Claim (3) had not been contained in the o rig inal p etition. The magi strate judg e recommended denial of Ng uy en’s petition with prejudice. He concluded that the state court’s determina t i on that Ng uy en’s sentence did not violate the prohibition a g ainst cruel and unusual punishment was not

co n t r ary to, or an u n reasonable application of, clearly

e s t a b lished Supreme Court law. H e also c oncluded th at Ng uy e n h a d not shown c ause and prejudice under Coleman

v. Thompson
, 501 U.S. 722 ( 1991), to ex cuse e ither the statecourt procedural default of h is double jeopardy claim, o r o f his appellate-counsel I AC claim f or failure to raise the double jeopardy claim. The mag istrate judge d i d not address the State’s arg ument that Ng uy en’s appellate-counsel I AC claim

was untimely under the one-y ear statut e o f limitations o f 28 U.S.C. § 2244(d). T h e district court adopted the

recomme n d ation in full and dismissed the petition with prejudice. Ng uy en timely appealed the denia l o f h is procedurally defaulted double jeopardy claim, and o f h is procedurally defaulted appellate-counsel I AC claim b a sed on the failure to raise the double jeopardy claim.

I I . Discussion

W h ile Ng uy en’s ap p e al was pending in this court, the Supreme Court decided Martinez

. Ng u y en argues in lig ht o f Martinez that the procedural default of his appellate-counsel I AC claim should have been ex c used. The State arg u es that Martinez does not apply to a n underlying appellate-counsel I AC claim. The State al s o a r g ues that Ng uy en’s appellate-N G U Y E N V

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counsel I AC claim was time-barred bec ause he filed it a fter the limitations period of 28 U.S.C. § 2244(d) had ex pired a nd it did not relate back to the orig inal, timely petition.

A. Martinez and Appellate-counsel I AC

An application for a f

ederal writ of habeas corpus cannot be g ranted unless the petitioner has ex hausted sta t e court remedies or is ex cused fr o m d o ing so. 28 U .S.C. § 2254(b)(1)(A). A petitioner ex hausts a claim by clearly presenting “ to the hig h est court of t h e state

. . . the federal basis and federal nature of the claim, along w i t h r e l evant facts.” Cooper v. Ne ven , 641 F

. 3d 322, 326–27 (9th Cir. 2011), cert. denied
, 132 S. Ct. 558 (2011). I f a petitioner tries
to present a claim to the state court b ut is prevented from doing so by h is failure to comply with a state procedural rule, the claim is “technically ex hausted” b u t procedurally defaulted. Id. at 327.

I n the ordinary case, a state-court p rocedural default may be ex c used o nly if a habeas petition e r can demonstrate both “c a u s e ” for the default a nd resulting “prejudice” under Coleman v. Thompson

. “[ C] ause” under t h e cause and prejudice test must be something external t o the petitioner, somethi n g that cannot fairly be attributed to him: W e think that the ex istence of cause for

a procedural default must ord i narily turn on whether the pris o n er can show that some objecti ve factor ex ternal to the defense impeded counsel’s efforts to comply with the State’s procedural rule.N G U Y E N V

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Coleman
, 501 U .S. a t 753 (internal quotation marks omitted). To show “prejudice” u n d e r Coleman
, the “habeas p etitioner
must show ‘ not merely that the errors a t

. . . trial created a possibility of prejudice, but that they worked to his actual a nd substantial disadvantag e, infecting his e ntire trial with error of constitutional dimensions.’” M urray v. Carrier
, 477 U.S. 478, 494 (1986) (quoting U n i t e d States v. Frady
, 456 U.S. 152, 170 (1982)) (omission and emphasis in orig inal).

I n Martinez
, the Supreme Court relax ed the Coleman

ca u se-and-prejudice standard for ex c use f rom procedural default in a narrow categ o ry of c a s e s

. Martinez had been convicted in Ariz ona, which categ orically forbade a prisoner
to raise a trial-counsel I AC claim on direct appeal. Martinez
, 132 S. Ct

. at 1313. The first time a claim of trial-counsel I AC could be raise d w a s on initial state-court collateral review. Id. Martinez ’ s sta t e postconviction counsel failed to raise a claim of trial-counsel I A C in initia l

- r e view state-court collateral proceeding s. Id. This failure resulted in procedural default of the I AC claim. Id. a t 1314

. O u r c o urt a pplied Coleman ’s c ause-and-prejudice standard for ex c use from procedural default. Martinez v. Schriro
, 623 F

. 3d 731, 735 (9th Cir. 2010). The Supreme Court reversed.

The Court in Martinez did not disting uish between trialcounsel a nd appellate-counsel I AC. I n the introduction to its opinion, the Court f

ramed the q

uestion as “whether a federal habeas court may ex cus e a p r ocedural default of an ineffective- a s s i s tance c laim when the c laim is not properly presented in state court due t o a n attorney ’s errors in an initial-review proceeding .” M a rtinez
, 132 S. Ct. a t 1313. The Court’s answer w as that procedural default of “an ineffective-assistance claim” by postconviction counsel in an initial-review state-cou rt collateral proceeding should beN G U Y E N V

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ex c u sed under a more l e n i en t standard than c ause a nd prejudice under Coleman

. Id. at 1318–19.

The c enterpiece of the Court’s analy sis in Martinez is the fundamental importance of effective assistance of counsel
g uaranteed by the Six th Amendment. I n Martinez ’s case, his Six th Amendment c laim was trial-couns e l I A C

. The Court wrote:

The rig ht to the effective assistance of counsel

a t trial is a bedrock principle in our justic e sy stem. . . . I ndeed, the rig ht to counsel is the foundation f

or our adversary sy stem. Defense counsel tests the prosecution’s case to ensure that the proceedings s e rve the function o f adjudicating g uilt or innocence, while
p r o t e c t i n g t h e r i g h t s o f t h e p e r s o n charg ed.

. . . Effective trial counsel preserves claims to be conside re d o n a ppeal, and in federal habeas proceeding s.

Id. at 1317–18 (citations omitted).

T h e C o urt pointed out that, in Ariz ona, the first stat e

court opportunity to raise a claim of trial-counsel I AC was on initi a l co l l ateral review. The Court d eclined to hold that a criminal defendant has a consti t utional rig ht to effective assistance of p ostconviction counsel. B u t it recog niz e d, as a practical matter, that if a c o n s titutional claim of ineffective assistance of counsel could not be raised on direct appeal, the initial collateral review proceeding was the fu n c t ional

“ equivalent” of a d irect a ppeal. Id. at 1317. The C o u r t therefore established, a s an equitable r ule, that the procedural default o f Martinez ’s underlying trial-counsel I AC claim b yN G U Y E N V

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h i s i neffective postconviction counsel could b e ex cused un d e r

a more lenient standard than the Coleman cause-andprejudice standard. I

d. at 1318–19.

T h e Court reaffirmed Martinez a y ear later in Trevino v. Thaler
, 133 S. Ct. 1911 (2013). I n Martinez
, A riz ona law h ad categ orically forbi d d e n a criminal defendant f rom r aising a claim of trial-counsel I AC o n direct a ppeal, requiring instead that such a c laim be raised in an initial-review collateral proceeding

. I n T

revino
, Tex as law did not categ orically forbid a c riminal defendant f r om raising a c laim of trialcoun s e l I A C o n direct appeal. Trevino
, 133 S. Ct. at 1915. Bu t t he Court recog niz ed that it w as “hig hly unlikely ” that appellate counsel would have a “meaning ful opportunity ” to raise such a claim. Id. at 1921. The Court held that, in this circumstance, a procedural default of an u nderly ing trialcounsel I AC claim b y postconviction couns e l could be

e x cused upon a finding of “cause” under the standard articulated in Martinez

. Id.

The Cou r t in Martinez established a four-part test for

ex c u se o f a p rocedural default of a trial-counsel I A C claim b y

an ineffective postconvicti o n counsel. The procedural default
may be ex cused if ther e i s “ c a u se” for the default. “ Cause” under Martinez has a different meaning than under Coleman

. “Cause” is established under Martinez where

(1) the claim of “ineffective assistance of trial counsel ” was a “substantial” claim; (2) the “cause” consisted of there b eing “no counsel”

o r only “ineffective” counsel d uring the stat e collater a l review proceeding ; (3) the state collateral review proceeding was the “initial”

r e v i e w p r o ce e d i n g i n respec t t o t h eN G U Y E N V

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“ i n e f f e c t i v e

- a s s i s t a n c e

- o f

- t r i a l

- c o u n s e l claim”; and (4) state law requires t h a t an “ineffective assistance of trial counsel [ claim]

. . . be raised in an initial-review collateral review proceeding .”

Trevino
, 1 33 S. Ct. at 1918 (alterations in orig ina l )

. A s described above, Trevino slig htly modified the fourth requirement to allow a finding of “cause” where it is “hig hly

u n likely ” that an I AC c an be raised on direct a ppeal. I d

. at 1921.

The question before us is w hether the standard for “cause” articulated in Martinez a n d r eaffirmed in Trevino applies in a case where the underlying I AC i s b y appellate counsel rather than trial counsel. W e conclude that it does.

The Six th A mendment r ig ht to effective c o u n sel applies equally to both trial and appellate c ounsel. Compare G ideon

v. W ainwright
, 372 U.S. 335, 344 (1963) (trial counsel) (“[ A] n y person haled into court, who i s t o o poor to hire a lawy er, cannot be assured a fair trial unless co u n s e l is provided for him.”), and Powell v. Alabama
, 287 U

. S. 45, 69 (1932) (trial counsel) (“[ T h e defendant] requires the g uiding hand o f counsel at every step in the proceeding s ag ainst him. W ithout it, thoug h he b e n ot g uilty
, he faces the dang er o f convict i o n because he d o es not know h ow to establish his innocence.”), with E

v itts v. Lucey
, 469 U .S. 387, 396 (1985) (appellate counsel) ( “A first appeal a s of ri gh t

. . . is not adjudicated in accord with due process of law if the appellant does not h ave the effective a ss i stance of an attorney .”), and Douglas v. California
, 372 U. S

. 353, 357 (1963) (appellate counsel) (“[ W ]here the merits of the one and only appeal an indig en t has as of rig ht are decided without benefit o fN G U Y E N V

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counsel, w e think an unconstitutional line has been drawn between rich and poor.”).

There is nothing in o u r jurisprudence to sug g est that the Six th Amendment rig ht to effective counsel is weaker or less important for appellate counsel than for trial c ouns e l

. T h e Court in Coleman made clear that the dividing line b e tween

cases i n w hich state-court procedural default should, o r should not, be forg iven was the line b etween constitutionally ineffective and merely neg lig ent counsel: “W here a p etitioner defaults a claim as a result o f the d enial of t h e r i gh t to effective assistance of c ounsel, the State, which is responsible for the denial a s a constitutional matter, must bear the cost o f
any resulting default and the harm to state i n t erests that federal habeas review entails.” Coleman
, 5 0 1 U.S. at 754. The Court in Coleman did not disting uish between ineffective assistance by trial and appellate c o u n s e l. I n Martinez itself, the Court emphasiz ed the importance of e f f e c t ive appellate counsel. I t wrote:

As Coleman r ecog niz ed, an a ttorney ’ s e rrors during an a p p eal o n direct review may provide cause to e x cuse a procedural default; for if the attorney ap p o i n t ed by the State to pursue th e direct appeal is ineffective, the prisoner h as been denied fa ir process and the opportunity to comply w i t h the State’s pr o c edures and obtain an a djudication on the merits of his claims.

Martinez , 132 S. Ct. at 1317.

The Court ’ s central p oint in Martinez is that a “substantial” I AC claim d eserves one chance to be heard onN G U Y E N V

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initial r eview in a state postconviction proceeding

. The Court wrote:

W h e n an attorney errs in initial-review collateral proceeding s, it is likely that no state court at any level will hear t h e prisoner’s cl a im.

. . . [ I ] f counsel’s errors in an initialreview collateral proceedin g do not establish

cause to ex cuse the procedura l default in a federal habeas proceeding
, no court will review the prisoner’s claims.

The same is not true when counsel errs in other k inds of postconviction p r oceeding s.

. . .

. . . [ T] he initial

- r eview collateral proceeding

. . . is in many way s the equivalent of a prisoner’s direct appeal

. . . becaus e

. . . no other court has addressed the claim.

Id. at 1316–17.

W h at th e C o u r t w rote with r espect to procedural default of a claim of trial

- c o u n sel I AC is equally true of a claim o f appellate-co u

n s el I AC. Trial-counsel I AC ty pically cannot be raised on appeal because of the necessity to d evelop and rely

on evidence that is not in the trial-court record. A p pellatecounsel I A C cannot be raised on a ppeal because the appeal

was the proceeding in which the constitutionally ineffect i ve assistance occurred. I n either case, the initial-review statecourt c ollateral proceeding is the f irst place in which an I AC claim can be made. I f a procedural default by an ineffective postconviction counsel forfeits an u nderlying trial-counsel o rN G U Y E N V

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an appellate-coun s e l I AC c laim, no court will ever hear that underlying I AC claim.

The procedural default in Colema n was the result o f ineffective a ssistance by appellate counsel, who had failed to bring a timely appeal of the trial court’s denial of the s t a t e habeas petition. Coleman
, 5 01 U.S. at 727. The Court in Martinez made clear that th e cause-and-prejudice r u le was appropriate in Coleman because the petitioner had been able
to present h is claims in an initial-review state-court postconviction proceeding

. The Court in Martinez disting uished Coleman
, but n ot on the g round that the underlying c laim was appellate-counsel I AC. Rather, the Court emphasiz ed that Coleman

di d not present the occasion to apply [ its holding ] to determine whether attorney e rrors in initial-review collateral p roceeding s m ay qualify as c a

use f or a procedural default. The alleged failure of counsel in Coleman was on appeal from a n in i t ial-review collateral proceeding, and in that proceeding the priso ner’s claims had been addressed by the state habeas trial court

.

Martinez , 132 S. Ct. at 1316 (emphasis added).

The Court in Martinez was c areful to restrict i t s h o l d ing
to ineffective assistance in t h e initial-review collateral proceeding in state court. The Court wrote:

T he rule of Coleman g o verns in all b u t t h e limited circumstances recog n iz ed here

. The holding in this case does not c o ncern attorneyN G U Y E N V

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errors in other kinds of proceeding s, including

a p p e a l s f

r o m i n i t i a l

- r e v i e w c o l l a t e r a l proceeding s, second or successi v e collateral proceeding s, a n d petitions for discretionary review in a State’s appellate courts. I t does
not ex tend to attorney e rrors in any proceeding bey ond the first occasion the State allows a prisoner to raise a claim o f ineffective assistance at trial, even thoug h that initial-review c ollateral proceeding may be deficient for other reasons.

Id. at 1 320 (citations omitted). This p assag e specifies that the Martinez standard for ca u se applies only in the “limited circumstances recog niz ed h ere.” W e read the passag e to limit application of the M

artinez “cause” standa rd to procedural default by postconviction counse l a t the initial-review collateral p roceeding
, b y specify ing that the Martinez

s t a n d a rd does not apply to other kinds of defaults b y postconviction counsel. W e do not read the passag e to limit application of the Martinez standard to only one kind of Six th Amendment ineffective assistance violation.

Our reading is consistent with the question th e C o urt asked at the beg i n n i n g of its opinion in Martinez : “whether

a federal h abeas court may ex cuse a procedural default of an ineffective a ssistance claim when the claim was not properly presented in state court due t o a n attorney ’s errors in an initial-review collateral proceeding .” Id. at 1313. That question was not limited to a c laim of i n e f f e ctive assistance by trial counsel. I t encompass e d
, w ithout qualification, “an ineffective assistance claim.” W e therefore c onclude that the Martinez standard for “cause” applies to all Six th Amendme n t ineffective-assistance claims, both trial a ndN G U Y E N V

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appellate, that have been procedurally defau l t e d b y ineffective counsel in the initial-review state-court collateral proceeding

.

W e recog niz e that several of our sister circuits have h eld otherwise. I n 2012, before the Court decided Trevin o , the Eig hth and Tenth Circuits understood Martinez to be limited
to the circumstance where s t ate law categ orically forbade raising claims of trial-counsel I AC o n direct app e a l

. See B a n k s v. W orkman
, 692 F .3d 1133, 1148 (10th Cir. 201 2 ) ; Da n sby v. Norris
, 682 F .3d 711, 728–29 (8th Cir. 2012), vacated sub nom. Dansby v. Hobbs , 133 S. Ct. 2767 (2013). I n rejecting that understanding o f M a r tinez
, the Court in Trevino made c l e a

r t h a t the “limited-circumstances” lang uag e in Martinez did not limit its hold i ng to the circumstance where a state law categ orically forbids claims of trial-counsel I AC on direct appeal. Trevino
, 133 S. Ct. at 1921. The Court held that the “cause” standard a r ticulated in Martinez also applied in the circumstance where a p rison er was merely “hig hly unlikely ” a s a practical matter to have a “meaning f ul opportunity ” to raise a claim of tria l -counsel I AC on direct appeal. Id.

The Eig hth and Tenth Circuits also u nderstood Martinez to be limited to claims of trial-counsel I AC. Banks
, 692 F .3d
at 1148; D ansby
, 682 F .3d at 729; see also Hodges v

. Colson
, 727 F .3d 517, 531 ( 6 t h Cir. 2013). We believe those courts

are wrong in re a d i n g into Martinez the limitation to trialcounsel I AC, for the same reason they were w rong in r eading into Martinez the limitation to state statutes catego r i c ally forbidding I AC clai m s o n direct appeal. The fundamental principle of M

artinez is that a criminal defendant deserves a ch a n c e to assert a Six th Amendment claim of ineffective assistance o f counsel. B ecause an ineffective assist a nceN G U Y E N V

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claim cannot as a p r a ctical matter be made on direct appeal, the Court formulated an equitable rule that allows ex cuse o f procedural default by ineffective counsel at the initial-review

c o l l a teral proceeding

. The Martinez rule is limited t o a n underlying Six th Amendment ineffective assistance cla i m,

a n d t o a p rocedural default by ineffective counsel in an initial-review c ollateral proceeding

. B ut, as the Court held in Trevino
, it is not limited to cases in whi c h a state statute categ orically prohibits r aising a Six th Amendment I AC claim

on direct r eview. Similarly
, a s we hold h ere, it is not limited
to Six th Amendm e n t c laims o f trial-counsel I AC. I t also

e x tends to Six th Amendment claims of appellate-couns el I AC.

B

. Statute of L imitations and Relation B ack

Ng uy en was required to file his habe a s p etition o n o r before May 27, 2 008. H e filed h is or i gi n al p etition in F ebruary 2008, well within the limitations period. H e alleg ed
two claims in his orig inal petition: a n ex hausted Eig hth Amendment cruel and unusual punis h m e n t c laim, and an

unex h a usted F ifth Amendment doub l e jeopardy c laim. Ng uy en then filed a

n amended petition after the ex piration o f the statute of limitations in which he realleg ed h is Eig hth Am e ndment c laim and his now-ex hausted double jeopardy claim and a l leg ed, for the f irst time, his appellate-counsel I AC claim.

The State contended in the district c o u r t , and contends before us, that Ng uy en’s appellate-counsel I A C claim is untimely

. The district court d id not reach that question. B ut the question has been briefed and p resented to us, and we see no reason not to decide it now.N G U Y E N V

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A claim added to a t i m e l y f i led habeas petition after the

ex p iration of the statute of l i m i t at i ons is timely only if the

new claim relates back to a p roperly filed claim contained in the orig inal petition. To b e properly filed, a claim must have been ex hausted at the time of filing

. King v. Ryan
, 564 F .3d 1133, 1142 (9th Cir. 2009). Ng uy e n’s double jeopardy claim

was not ex hausted when he included it in his orig inal h abeas petition. His a p p e l late-counsel I AC claim was not included in the orig inal habeas petiti o n a t a l l. T herefore, neither o f these claims was timely

filed unless it relates back.

I n M ayle v. Felix
, 545 U.S. 644 (2005), the Court h eld that a late-filed claim in an amend e d federal habeas petition relates back under Rule 15(c) if the timely claim and the latef iled c laim “ are tied to a common core of operative fa c t s

. ” Id. at 664. The State made no timeliness objection, either in the district c ourt or here, to Ng uy en’s double jeopardy claim in his amended petition. I t wrote in its brief to us that it declined to object because the double jeopardy claim “shared

a c ommon core of o p erative facts” with Ng uy en’s timely filed cruel and u nusual punishment claim. The doub l e jeopardy claim therefore related back to t h e d ate of filing Ng uy en’s orig inal habeas petition. H ow e v e r , the State contends that Ng uy en’s a

ppellate-counsel I AC claim for failure to raise a double jeopardy claim does not relate b ack and is therefore untimely . The State argues that Ng u y en’s appellate-counsel I AC claim d oes n o t relate back because it concerned events that occurred a f

t e r the resentencing hearing

. The question before us is t h u s whether the fact that the I AC claim arose later in time means that it may not relate back.

The Court wrote in Mayle
, “An amended habeas petition

. . . does not relate back ( and thereby e scape AEDPA’s oney ear time limit) when it ass e r t s a new g round f or reliefN G U Y E N V

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supported by facts that d iffer in both time and ty pe from those the orig inal pleading sets forth.” I d. at 650. I t is true, as the State points out, tha t Ng uy en’s claims “differ in

. . . time.” His c ruel and unusual punish m e nt a nd double jeopardy c laims

arose at resentencing
, when he was sentenced to twenty -fivey ears-to-life on Count One after he had already served all of the three-year sentence orig inally imposed unde r t h a t c ount. His a p p e l l a t e-counsel I AC claim for failure to raise the double jeopardy claim arose later, w hen his counsel failed to raise that claim on appeal. I t is also true tha t Ngu y en’s claims “differ in

. . . ty

p e.” One is an Eig hth A mendment cruel and unusual punishment c la i m , o n e is a F ifth A mendment double jeopardy claim, and one is a S i x t h Amendment I AC claim.

B u t the “time and ty

p e” lan gu a ge i n Mayle refers not to the claims, o r g rounds for relief. Rather, it refers to the facts that support those grounds

. All o f Ng uy en’s asserted
g rounds for relief—cruel and unusual punis hment, double jeopardy
, and appellate-counsel I AC for fa i l i ng to raise double jeopardy

—are supported by a common c or e o f facts. Those facts are simple, straig htforward, and uncontroverted. And they were clearly a lleg ed in the orig inal pleading

. They
are, first, that Ng uy en f

u l ly served the sentence orig inally imposed for Count One; and, second, that the court thereafter resentenced Ng uy e n to imprisonment for twenty

- f ive-y earsto-life on the same count. Compare Hebner v. McGrath
, 543 F .3d 1 133, 1139 ( 9th Cir. 2008) (finding no relation back where the two claims were a challeng e to the adm i s s i o n o f testimony and a challeng e to a jury

instruction).

W e therefore conclude that Ng u y en’s appellate-counsel I AC claim relates back under Rule 15(c).N G U Y E N V

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Conclusion

B e cause the district court decided this case before the Supreme Cour t decided Martinez
, it has not had the opportunity to apply the M artinez standard for “cause” to determine w hether Ng uy en’s p rocedural default may be

ex c u sed. W e therefore r e mand to g ive the district court the opportunity to apply in the first instance Martinez ’s standard for “cause” to Ng uy e n’s p rocedural de fa u l t

. I f the district
court concludes that Ng uy en’s procedural default of h is appella t e c o u n sel’s I AC may be ex cused, and if the district
court also concludes that Ng uy en’s second appellate counsel provided constitutionally ineffective assistance in fai l i n g to raise his double jeopardy c laim on direct appeal, the procedural default of Ng uy en’s second appellate counsel may also be ex cused. See Coleman , 501 U.S. at 754.

REVERSED and REMANDED

.