FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HA VAN NGUYEN,

Petitioner-Appellant,

v.

BEN CURRY,

Respondent-Appellee.

No. 11-56792

D.C. No.

8:08-cv-00198-JST-FFM

OPINION

Appeal from the United States District Court

for the Central District of California

Josephine Staton Tucker, District Judge, Presiding

Argued and Submitted

June 4, 2013—Pasadena, California

Filed December 4, 2013

Before: Stephen S. Trott and William A. Fletcher,

Circuit Judges, and Sidney H. Stein, District Judge.*

Opinion by Judge W. Fletcher

* The Honorable Sidney H. Stein, District Judge for the U.S. District

Court for the Southern District of New York, sitting by designation.
2 NGUYEN V. CURRY

SUMMARY**

Habeas Corpus

The panel reversed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition and remanded for

consideration in light of the Supreme Court’s intervening

decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).

After his direct appeal concluded and counsel withdrew

from the case, petitioner filed a pro se § 2254 petition that

included a procedurally defaulted Double Jeopardy claim. 

The district court stayed and abeyed proceedings to allow

petitioner to exhaust this claim in state court, as well as a

claim that appellate counsel was ineffective for failing to

raise the Double Jeopardy claim. The state court denied the

state habeas petition as untimely, and petitioner filed an

amended § 2254 petition raising both procedurally defaulted

claims. The panel held that Martinez applies to ineffective

assistance of appellate counsel as well as trial counsel. The

panel further held that petitioner’s ineffective assistance of

appellate counsel claim related back to the original § 2254

petition and was therefore timely. The panel remanded for

the district court to consider in the first instance whether the

procedural default of either claim may be excused under

Martinez.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
NGUYEN V. CURRY 3

COUNSEL

Patricia A. Young (argued), Federal Public Defender’s

Office, Los Angeles, California, for Petitioner-Appellant.

Matthew Mulford (argued), Office of the California Attorney

General, San Diego, California, for Respondent-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

Ha Van Nguyen appeals the district court’s denial of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. 

The district court denied two of his three claims as

procedurally defaulted. Nguyen contends that his procedural

default should be excused under the standard for “cause”

articulated in Martinez v. Ryan, 132 S. Ct. 1309 (2012). The

Supreme Court in Martinez established an equitable rule

under which the failure of an ineffective counsel or pro se

petitioner to raise, in a state court initial-review collateral

proceeding, a claim of ineffective assistance of counsel

(“IAC”) at trial can be “cause” to excuse a state-court

procedural default. The question before us is whether

Martinez applies to the failure to raise not only a claim of

trial-counsel IAC, but also a claim of appellate-counsel IAC. 

We conclude that it does. We remand to allow the district

court to determine in the first instance whether Nguyen’s

state-court procedural default should be excused under

Martinez.
4 NGUYEN V. CURRY

I. Background

On February 26, 2003, Orange County Sheriff

Department deputies found Nguyen asleep behind the wheel

of his car, stopped at a green traffic light. After he was

awakened, Nguyen identified himself to the deputies using a

false name and false identification. Nguyen consented to a

search of the car. The officers found two pieces of rock

cocaine that Nguyen was hiding in his fist. They also found

a social security card bearing the name “Kevin Lu,” as well

as three driver’s licenses bearing different names, including

that of Lu.

Nguyen was convicted after a jury trial in California

Superior Court of felony cocaine possession, Cal. Health &

Safety Code § 11350(a) (“Count One”); felony possession of

a forged driver’s license with intent to facilitate forgery, Cal.

Penal Code § 470b (“Count Two”); and misdemeanor false

identification to a peace officer, Cal. Penal Code § 148.9(a)

(“Count Three”). The trial court found that Nguyen had

previously been convicted of six qualifying felonies and was

therefore eligible to be sentenced pursuant to California’s

three-strikes law. See Cal. Penal Code § 667. The court

imposed a three-strikes sentence of 25 years to life on the

forgery conviction, Count Two. The court struck the prior

convictions for the felony cocaine possession conviction,

Count One, and imposed a three-year concurrent sentence on

that count. The misdemeanor conviction, Count Three, was

irrelevant to the three-strikes sentence.

On appeal, Nguyen’s counsel argued that the prosecution

had presented insufficient evidence at trial to support a

conviction on Count Two. The California Court of Appeal

agreed. It reduced Nguyen’s conviction on Count Two to
NGUYEN V. CURRY 5

misdemeanor display of a fraudulent driver’s license, Cal.

Veh. Code § 14610(a)(1), and remanded for resentencing. On

remand, the trial court reversed its earlier decision to strike

Nguyen’s prior convictions for purposes of sentencing under

Count One. The court then resentenced Nguyen under Count

One to a three-strikes sentence of 25 years to life. At the time

of his resentencing under Count One, Nguyen had already

served the three-year concurrent sentence previouslyimposed

for that count. The trial court suspended Nguyen’s sentence

for Counts Two and Three, both of which were now

misdemeanor convictions. Nguyen’s trial counsel objected

that the new sentence on Count One was a “violation of the

Fifth, Sixth and Fourteenth Amendments . . . in that . . . it

increases the original punishment on Count One.”

Nguyen appealed again. Nguyen’s court-appointed

counsel on his second appeal argued that the trial court’s

decision to reinstate his prior felony convictions for purposes

of resentencing under Count One was an abuse of discretion

under state law. She also argued that a 25-years-to-life

sentence for Count One—felony possession of cocaine—was

grossly disproportionate to the crime, constituting cruel and

unusual punishment under the Eighth Amendment. She did

not make a double jeopardy argument under the Fifth

Amendment. The California Court of Appeal affirmed

Nguyen’s sentence, and the California Supreme Court denied

his petition for review.

Nguyen’s counsel on his second appeal sent a letter to

Nguyen 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 Nguyen that if he

“wish[ed] to go on to federal court [he] must do so on [his]
6 NGUYEN V. CURRY

own.” She did not mention the possibility of filing a state

habeas petition.

Now without counsel, Nguyen did not file a petition for

habeas corpus in state court. Instead, he filed a timely pro se

habeas petition in federal court under 28 U.S.C. § 2254.

Nguyen asserted two claims: (1) his new sentence violated

the Eighth Amendment’s prohibition against cruel and

unusual punishment, and (2) his new sentence on Count One

violated his Fifth Amendment right to be free from double

jeopardy. The first claim had been exhausted in state court;

the second claim had not. The magistrate judge granted a

stay and abeyance of his federal habeas proceedings to allow

Nguyen to exhaust his double jeopardy claim. The magistrate

judge also granted a stay and abeyance for an additional claim

that appellate counsel on his second appeal had been

ineffective in failing to raise a double jeopardy claim. The

magistrate judge characterized both the double jeopardy

claim and the additional appellate-counsel IAC claim based

on the failure to raise the double jeopardy claim as

“potentially meritorious.”

Nguyen filed a petition for habeas corpus directlywith the

California Supreme Court, seeking review of these two

unexhausted claims. The California Supreme Court

summarily denied the petition, citing In re Clark, 855 P.2d

729 (1993). A summary denial citing Clark indicates that the

California Supreme Court rejects a petition as untimely rather

than on the merits. Walker v. Martin, 131 S. Ct. 1120, 1126

(2011).

Nguyen then filed an amended federal habeas petition,

after the expiration of the statute of limitations, asserting

three claims for relief: (1) the non-defaulted cruel and
NGUYEN V. CURRY 7

unusual punishment claim; (2) the procedurally defaulted

double jeopardy claim, and (3) the procedurally defaulted

appellate-counsel IAC claim based on the failure to raise the

double jeopardy claim. Claims (1) and (2) had been

contained in the original, timely filed federal habeas petition. 

Claim (3) had not been contained in the original petition. The

magistrate judge recommended denial of Nguyen’s petition

with prejudice. He concluded that the state court’s

determination that Nguyen’s sentence did not violate the

prohibition against cruel and unusual punishment was not

contrary to, or an unreasonable application of, clearly

established Supreme Court law. He also concluded that

Nguyen had not shown cause and prejudice under Coleman

v. Thompson, 501 U.S. 722 (1991), to excuse either the statecourt procedural default of his double jeopardy claim, or of

his appellate-counsel IAC claim for failure to raise the double

jeopardy claim. The magistrate judge did not address the

State’s argument that Nguyen’s appellate-counsel IAC claim

was untimely under the one-year statute of limitations of

28 U.S.C. § 2244(d). The district court adopted the

recommendation in full and dismissed the petition with

prejudice. Nguyen timely appealed the denial of his

procedurally defaulted double jeopardy claim, and of his

procedurally defaulted appellate-counsel IAC claim based on

the failure to raise the double jeopardy claim.

II. Discussion

While Nguyen’s appeal was pending in this court, the

Supreme Court decided Martinez. Nguyen argues in light of

Martinez that the procedural default of his appellate-counsel

IAC claim should have been excused. The State argues that

Martinez does not apply to an underlying appellate-counsel

IAC claim. The State also argues that Nguyen’s appellate-
8 NGUYEN V. CURRY

counsel IAC claim was time-barred because he filed it after

the limitations period of 28 U.S.C. § 2244(d) had expired and

it did not relate back to the original, timely petition.

A. Martinez and Appellate-counsel IAC

An application for a federal writ of habeas corpus cannot

be granted unless the petitioner has exhausted state court

remedies or is excused from doing so. 28 U.S.C.

§ 2254(b)(1)(A). A petitioner exhausts a claim by clearly

presenting “to the highest court of the state . . . the federal

basis and federal nature of the claim, along with relevant

facts.” Cooper v. Neven, 641 F.3d 322, 326–27 (9th Cir.

2011), cert. denied, 132 S. Ct. 558 (2011). If a petitioner tries

to present a claim to the state court but is prevented from

doing so by his failure to comply with a state procedural rule,

the claim is “technically exhausted” but procedurally

defaulted. Id. at 327.

In the ordinary case, a state-court procedural default may

be excused only if a habeas petitioner can demonstrate both

“cause” for the default and resulting “prejudice” under

Coleman v. Thompson.

“[C]ause” under the cause and prejudice test

must be something external to the petitioner,

something that cannot fairly be attributed to

him: We think that the existence of cause for

a procedural default must ordinarily turn on

whether the prisoner can show that some

objective factor external to the defense

impeded counsel’s efforts to comply with the

State’s procedural rule.
NGUYEN V. CURRY 9

Coleman, 501 U.S. at 753 (internal quotation marks omitted). 

To show “prejudice” under Coleman, the “habeas petitioner

must show ‘not merely that the errors at . . . trial created a

possibility of prejudice, but that theyworked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.’” Murray v. Carrier, 477 U.S.

478, 494 (1986) (quoting United States v. Frady, 456 U.S.

152, 170 (1982)) (omission and emphasis in original).

In Martinez, the Supreme Court relaxed the Coleman

cause-and-prejudice standard for excuse from procedural

default in a narrow category of cases. Martinez had been

convicted in Arizona, which categorically forbade a prisoner

to raise a trial-counsel IAC claim on direct appeal. Martinez,

132 S. Ct. at 1313. The first time a claim of trial-counsel IAC

could be raised was on initial state-court collateral review. 

Id. Martinez’s state postconviction counsel failed to raise a

claim of trial-counsel IAC in initial-review state-court

collateral proceedings. Id. This failure resulted in procedural

default of the IAC claim. Id. at 1314. Our court applied

Coleman’s cause-and-prejudice standard for excuse from

procedural default. Martinez v. Schriro, 623 F.3d 731, 735

(9th Cir. 2010). The Supreme Court reversed.

The Court in Martinez did not distinguish between trialcounsel and appellate-counsel IAC. In the introduction to its

opinion, the Court framed the question as “whether a federal

habeas court may excuse a procedural default of an

ineffective-assistance claim when the claim is not properly

presented in state court due to an attorney’s errors in an

initial-review proceeding.” Martinez, 132 S. Ct. at 1313. 

The Court’s answer was that procedural default of “an

ineffective-assistance claim” by postconviction counsel in an

initial-review state-court collateral proceeding should be
10 NGUYEN V. CURRY

excused under a more lenient standard than cause and

prejudice under Coleman. Id. at 1318–19.

The centerpiece of the Court’s analysis in Martinez is the

fundamental importance of effective assistance of counsel

guaranteed by the Sixth Amendment. In Martinez’s case, his

Sixth Amendment claim was trial-counsel IAC. The Court

wrote:

The right to the effective assistance of counsel

at trial is a bedrock principle in our justice

system. . . . Indeed, the right to counsel is the

foundation for our adversary system. Defense

counsel tests the prosecution’s case to ensure

that the proceedings serve the function of

adjudicating guilt or innocence, while

protecting the rights of the person

charged. . . . Effective trial counsel preserves

claims to be considered on appeal, and in

federal habeas proceedings.

Id. at 1317–18 (citations omitted).

The Court pointed out that, in Arizona, the first statecourt opportunity to raise a claim of trial-counsel IAC was on

initial collateral review. The Court declined to hold that a

criminal defendant has a constitutional right to effective

assistance of postconviction counsel. But it recognized, as a

practical matter, that if a constitutional claim of ineffective

assistance of counsel could not be raised on direct appeal, the

initial collateral review proceeding was the functional

“equivalent” of a direct appeal. Id. at 1317. The Court

therefore established, as an equitable rule, that the procedural

default of Martinez’s underlying trial-counsel IAC claim by
NGUYEN V. CURRY 11

hisineffective postconviction counsel could be excused under

a more lenient standard than the Coleman cause-andprejudice standard. Id. at 1318–19.

The Court reaffirmed Martinez a year later in Trevino v.

Thaler, 133 S. Ct. 1911 (2013). In Martinez, Arizona law had

categorically forbidden a criminal defendant from raising a

claim of trial-counsel IAC on direct appeal, requiring instead

that such a claim be raised in an initial-review collateral

proceeding. In Trevino, Texas law did not categorically

forbid a criminal defendant from raising a claim of trialcounsel IAC on direct appeal. Trevino, 133 S. Ct. at 1915. 

But the Court recognized that it was “highly unlikely” that

appellate counsel would have a “meaningful opportunity” to

raise such a claim. Id. at 1921. The Court held that, in this

circumstance, a procedural default of an underlying trialcounsel IAC claim by postconviction counsel could be

excused upon a finding of “cause” under the standard

articulated in Martinez. Id.

The Court in Martinez established a four-part test for

excuse of a procedural default of a trial-counsel IAC claim by

an ineffective postconviction counsel. The procedural default

may be excused if there is “cause” 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 being “no counsel”

or only “ineffective” counsel during the state

collateral review proceeding; (3) the state

collateral review proceeding was the “initial”

review proceeding in respect to the
12 NGUYEN V. CURRY

“ineffective-assistance-of-trial-counsel

claim”; and (4) state law requires that an

“ineffective assistance of trial counsel [claim]

. . . be raised in an initial-review collateral

review proceeding.”

Trevino, 133 S. Ct. at 1918 (alterations in original). As

described above, Trevino slightly modified the fourth

requirement to allow a finding of “cause” where it is “highly

unlikely” that an IAC can be raised on direct appeal. Id. at

1921.

The question before us is whether the standard for

“cause” articulated in Martinez and reaffirmed in Trevino

applies in a case where the underlying IAC is by appellate

counsel rather than trial counsel. We conclude that it does.

The Sixth Amendment right to effective counsel applies

equally to both trial and appellate counsel. Compare Gideon

v. Wainwright, 372 U.S. 335, 344 (1963) (trial counsel)

(“[A]ny person haled into court, who is too poor to hire a

lawyer, cannot be assured a fair trial unless counsel is

provided for him.”), and Powell v. Alabama, 287 U.S. 45, 69

(1932) (trial counsel) (“[The defendant] requires the guiding

hand of counsel at every step in the proceedings against him. 

Without it, though he be not guilty, he faces the danger of

conviction because he does not know how to establish his

innocence.”), with Evitts v. Lucey, 469 U.S. 387, 396 (1985)

(appellate counsel) (“A first appeal as of right . . . is not

adjudicated in accord with due process of law if the appellant

does not have the effective assistance 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

indigent has as of right are decided without benefit of
NGUYEN V. CURRY 13

counsel, we think an unconstitutional line has been drawn

between rich and poor.”).

There is nothing in our jurisprudence to suggest that the

Sixth Amendment right to effective counsel is weaker or less

important for appellate counsel than for trial counsel. The

Court in Coleman made clear that the dividing line between

cases in which state-court procedural default should, or

should not, be forgiven was the line between constitutionally

ineffective and merely negligent counsel: “Where a petitioner

defaults a claim as a result of the denial of the right to

effective assistance of counsel, the State, which is responsible

for the denial as a constitutional matter, must bear the cost of

any resulting default and the harm to state interests that

federal habeas review entails.” Coleman, 501 U.S. at 754. 

The Court in Coleman did not distinguish between ineffective

assistance by trial and appellate counsel. In Martinez itself,

the Court emphasized the importance of effective appellate

counsel. It wrote:

As Coleman recognized, an attorney’s errors

during an appeal on direct review may

provide cause to excuse a procedural default;

for if the attorney appointed by the State to

pursue the direct appeal is ineffective, the

prisoner has been denied fair process and the

opportunity to comply with the State’s

procedures and obtain an adjudication on the

merits of his claims.

Martinez, 132 S. Ct. at 1317.

The Court’s central point in Martinez is that a

“substantial” IAC claim deserves one chance to be heard on
14 NGUYEN V. CURRY

initial review in a state postconviction proceeding. The Court

wrote:

When an attorney errs in initial-review

collateral proceedings, it is likely that no state

court at any level will hear the prisoner’s

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

cause to excuse the procedural default in a

federal habeas proceeding, no court will

review the prisoner’s claims.

The same is not true when counsel errs in

other kinds of postconviction proceedings. . . .

. . . [T]he initial-review collateral

proceeding . . . is in many ways the equivalent

of a prisoner’s direct appeal . . . because . . .

no other court has addressed the claim.

Id. at 1316–17.

What the Court wrote with respect to procedural default

of a claim of trial-counsel IAC is equally true of a claim of

appellate-counsel IAC. Trial-counsel IAC typicallycannot be

raised on appeal because of the necessity to develop and rely

on evidence that is not in the trial-court record. Appellatecounsel IAC cannot be raised on appeal because the appeal

was the proceeding in which the constitutionally ineffective

assistance occurred. In either case, the initial-review statecourt collateral proceeding is the first place in which an IAC

claim can be made. If a procedural default by an ineffective

postconviction counsel forfeits an underlying trial-counsel or
NGUYEN V. CURRY 15

an appellate-counsel IAC claim, no court will ever hear that

underlying IAC claim.

The procedural default in Coleman was the result of

ineffective assistance by appellate counsel, who had failed to

bring a timely appeal of the trial court’s denial of the state

habeas petition. Coleman, 501 U.S. at 727. The Court in

Martinez made clear that the cause-and-prejudice rule was

appropriate in Coleman because the petitioner had been able

to present his claims in an initial-review state-court

postconviction proceeding. The Court in Martinez

distinguished Coleman, but not on the ground that the

underlying claim was appellate-counsel IAC. Rather, the

Court emphasized that Coleman

did not present the occasion to apply [its

holding] to determine whether attorney errors

in initial-review collateral proceedings may

qualify as cause for a procedural default. The

alleged failure of counsel in Coleman was on

appeal from an initial-review collateral

proceeding, and in that proceeding the

prisoner’s claims had been addressed by the

state habeas trial court.

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

The Court in Martinez was careful to restrict its holding

to ineffective assistance in the initial-review collateral

proceeding in state court. The Court wrote:

The rule of Coleman governs in all but the

limited circumstances recognized here. The

holding in this case does not concern attorney
16 NGUYEN V. CURRY

errors in other kinds of proceedings, including

appeals from initial-review collateral

proceedings, second or successive collateral

proceedings, and petitions for discretionary

review in a State’s appellate courts. It does

not extend to attorney errors in any

proceeding beyond the first occasion the State

allows a prisoner to raise a claim of

ineffective assistance at trial, even though that

initial-review collateral proceeding may be

deficient for other reasons.

Id. at 1320 (citations omitted). This passage specifies that the

Martinez standard for cause applies only in the “limited

circumstances recognized here.” We read the passage to limit

application of the Martinez “cause” standard to procedural

default by postconviction counsel at the initial-review

collateral proceeding, by specifying that the Martinez

standard does not apply to other kinds of defaults by

postconviction counsel. We do not read the passage to limit

application of the Martinez standard to only one kind of Sixth

Amendment ineffective assistance violation.

Our reading is consistent with the question the Court

asked at the beginning of its opinion in Martinez: “whether

a federal habeas court may excuse a procedural default of an

ineffective assistance claim when the claim was not properly

presented in state court due to an attorney’s errors in an

initial-review collateral proceeding.” Id. at 1313. That

question was not limited to a claim of ineffective assistance

by trial counsel. It encompassed, without qualification, “an

ineffective assistance claim.” We therefore conclude that the

Martinez standard for “cause” applies to all Sixth

Amendment ineffective-assistance claims, both trial and
NGUYEN V. CURRY 17

appellate, that have been procedurally defaulted by

ineffective counsel in the initial-review state-court collateral

proceeding.

We recognize that several of our sister circuits have held

otherwise. In 2012, before the Court decided Trevino, the

Eighth and Tenth Circuits understood Martinez to be limited

to the circumstance where state law categorically forbade

raising claims of trial-counsel IAC on direct appeal. See

Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012);

Dansby v. Norris, 682 F.3d 711, 728–29 (8th Cir. 2012),

vacated sub nom. Dansby v. Hobbs, 133 S. Ct. 2767 (2013). 

In rejecting that understanding of Martinez, the Court in

Trevino made clearthat the “limited-circumstances” language

in Martinez did not limit its holding to the circumstance

where a state law categorically forbids claims of trial-counsel

IAC on direct appeal. Trevino, 133 S. Ct. at 1921. The Court

held that the “cause” standard articulated in Martinez also

applied in the circumstance where a prisoner was merely

“highly unlikely” as a practical matter to have a “meaningful

opportunity” to raise a claim of trial-counsel IAC on direct

appeal. Id.

The Eighth and Tenth Circuits also understood Martinez

to be limited to claims of trial-counsel IAC. Banks, 692 F.3d

at 1148; Dansby, 682 F.3d at 729; see also Hodges v. Colson,

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

are wrong in reading into Martinez the limitation to trialcounsel IAC, for the same reason they were wrong in reading

into Martinez the limitation to state statutes categorically

forbidding IAC claims on direct appeal. The fundamental

principle of Martinez is that a criminal defendant deserves a

chance to assert a Sixth Amendment claim of ineffective

assistance of counsel. Because an ineffective assistance
18 NGUYEN V. CURRY

claim cannot as a practical matter be made on direct appeal,

the Court formulated an equitable rule that allows excuse of

procedural default by ineffective counsel at the initial-review

collateral proceeding. The Martinez rule is limited to an

underlying Sixth Amendment ineffective assistance claim,

and to a procedural default by ineffective counsel in an

initial-review collateral proceeding. But, as the Court held in

Trevino, it is not limited to cases in which a state statute

categorically prohibits raising a Sixth Amendment IAC claim

on direct review. Similarly, as we hold here, it is not limited

to Sixth Amendment claims of trial-counsel IAC. It also

extends to Sixth Amendment claims of appellate-counsel

IAC.

B. Statute of Limitations and Relation Back

Nguyen was required to file his habeas petition on or

before May 27, 2008. He filed his original petition in

February 2008, well within the limitations period. He alleged

two claims in his original petition: an exhausted Eighth

Amendment cruel and unusual punishment claim, and an

unexhausted Fifth Amendment double jeopardy claim. 

Nguyen then filed an amended petition after the expiration of

the statute of limitations in which he realleged his Eighth

Amendment claim and his now-exhausted double jeopardy

claim and alleged, for the first time, his appellate-counsel

IAC claim.

The State contended in the district court, and contends

before us, that Nguyen’s appellate-counsel IAC claim is

untimely. The district court did not reach that question. But

the question has been briefed and presented to us, and we see

no reason not to decide it now.
NGUYEN V. CURRY 19

A claim added to a timely filed habeas petition after the

expiration of the statute of limitations is timely only if the

new claim relates back to a properly filed claim contained in

the original petition. To be properly filed, a claim must have

been exhausted at the time of filing. King v. Ryan, 564 F.3d

1133, 1142 (9th Cir. 2009). Nguyen’s double jeopardy claim

was not exhausted when he included it in his original habeas

petition. His appellate-counsel IAC claim was not included

in the original habeas petition at all. Therefore, neither of

these claims was timely filed unless it relates back.

In Mayle v. Felix, 545 U.S. 644 (2005), the Court held

that a late-filed claim in an amended federal habeas petition

relates back under Rule 15(c) if the timely claim and the latefiled claim “are tied to a common core of operative facts.” 

Id. at 664. The State made no timeliness objection, either in

the district court or here, to Nguyen’s double jeopardy claim

in his amended petition. It wrote in its brief to us that it

declined to object because the double jeopardy claim “shared

a common core of operative facts” with Nguyen’s timely filed

cruel and unusual punishment claim. The double jeopardy

claim therefore related back to the date of filing Nguyen’s

original habeas petition. However, the State contends that

Nguyen’s appellate-counsel IAC claim for failure to raise a

double jeopardy claim does not relate back and is therefore

untimely. The State argues that Nguyen’s appellate-counsel

IAC claim does not relate back because it concerned events

that occurred after the resentencing hearing. The question

before us is thus whether the fact that the IAC 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 escape AEDPA’s oneyear time limit) when it asserts a new ground for relief
20 NGUYEN V. CURRY

supported by facts that differ in both time and type from those

the original pleading sets forth.” Id. at 650. It is true, as the

State points out, that Nguyen’s claims “differ in . . . time.” 

His cruel and unusual punishment and double jeopardyclaims

arose at resentencing, when he was sentenced to twenty-fiveyears-to-life on Count One after he had already served all of

the three-year sentence originally imposed under that count. 

His appellate-counsel IAC claim for failure to raise the

double jeopardy claim arose later, when his counsel failed to

raise that claim on appeal. It is also true that Nguyen’s

claims “differ in . . . type.” One is an Eighth Amendment

cruel and unusual punishment claim, one is a Fifth

Amendment double jeopardy claim, and one is a Sixth

Amendment IAC claim.

But the “time and type” language in Mayle refers not to

the claims, or grounds for relief. Rather, it refers to the facts

that support those grounds. All of Nguyen’s asserted

grounds for relief—cruel and unusual punishment, double

jeopardy, and appellate-counsel IAC for failing to raise

double jeopardy—are supported by a common core of facts. 

Those facts are simple, straightforward, and uncontroverted. 

And they were clearly alleged in the original pleading. They

are, first, that Nguyen fully served the sentence originally

imposed for Count One; and, second, that the court thereafter

resentenced Nguyen to imprisonment for twenty-five-yearsto-life on the same count. Compare Hebner v. McGrath,

543 F.3d 1133, 1139 (9th Cir. 2008) (finding no relation back

where the two claims were a challenge to the admission of

testimony and a challenge to a jury instruction).

We therefore conclude that Nguyen’s appellate-counsel

IAC claim relates back under Rule 15(c).
NGUYEN V. CURRY 21

Conclusion

Because the district court decided this case before the

Supreme Court decided Martinez, it has not had the

opportunity to apply the Martinez standard for “cause” to

determine whether Nguyen’s procedural default may be

excused. We therefore remand to give the district court the

opportunity to apply in the first instance Martinez’s standard

for “cause” to Nguyen’s procedural default. If the district

court concludes that Nguyen’s procedural default of his

appellate counsel’s IAC may be excused, and if the district

court also concludes that Nguyen’s second appellate counsel

provided constitutionally ineffective assistance in failing to

raise his double jeopardy claim on direct appeal, the

procedural default of Nguyen’s second appellate counsel may

also be excused. See Coleman, 501 U.S. at 754.

REVERSED and REMANDED.