Luna's court-appointed counsel filed his federal habeas petition 6 years after the statutory time limit. The magistrate judge noted that Luna “may have been better off without counsel.” The court found that contrary to the state’s contention to establish exceptional circumstance for equitable tolling the petitioner need not establish abandonment by his counsel, but a showing of professional misconduct [as opposed to “garden variety” negligence] will suffice if the misconduct is “sufficiently egregious.” Where counsel incorrectly move to voluntarily dismiss Luna’s timely filed petition, failed to both exhaust his remaining state court claims or file a federal petition within the statute of limitations, and continually led his client to believe his case would be heard on the merits because a fully exhaust federal habeas petition would be filed, the misconduct was sufficiently egregious. “[a]ffirmatively misleading a petitioner to believe that a timely petition has been or will soon be filed can constitute egregious professional misconduct.” The case was remanded back to the magistrate to consider diligence on Luna’s part as the court did not analyze the issue after finding a lack of extraordinary circumstances. To establish diligence Luna most show that 1) he kept in touch with his attorney and 2) that it was reasonable to continue to rely on his counsel's assurance about the progress of the case. The court found that the length of the delay, 6 years, was not by itself sufficient to show a lack of diligence, as argued by the state. Finally, the court affirmed that in determining equitable tolling that a “stop clock” approach should be used in connection with a diligence-through-filing requirement, i.e., that “the clock stops running when extraordinary circumstances first arise, but the clock resumes running once the extraordinary circumstances have ended or when the petitioner ceases to exercise reasonable diligence, whichever occurs earlier.” The petitioner must show that he/she remained diligent through filing. [The court did note that at some point, “our circuit may need to decide whether it makes sense to follow the stop-clock approach and at the same time impose a diligence-through-filing requirement.”]
Pizzuto filed a Rule 60 motion challenging the denial of his habeas petition, arguing that because of the subsequent decision in Martinez v. Ryan he should be allowed to reopen his petition. The Court held he could raise his claims under Rule 60(b) [arguments based on improper finding of procedural default or fraud can be raised under the Rule], but held that since two of his claims did not involve ineffective assistance of counsel Martinez does not apply. ["We .. decline to extend Martinez to cover claims other than ineffective assistance of trial or appellate counsel"] It considered the remaining claim and assumed without deciding that an "if a claim satisfied Martinez's requirements, it would constitute an extraordinary circumstances sufficient to justify relief under Rule 60(b)(6)." Citing to Jones v. Ryan as a reason to doubt this assumption. The court also found that the conflict of interest claims are eligible for consideration under Martinez, but the claim did not establish cause to excuse the procedural default under the Martinez standard. Finally, the Court denied a claim that the Government perpetrated a fraud on the district court because of a lack of evidence that there was "any knowledge on the part of the lawyers representing the state before the federal courts of the various alleged trial improprieties." "It takes more than 'say so' to transform routine advocacy by the state's lawyers of its position into a fraud on the court."
Upholding a denial of a petition because the state court's conclusions were not unreasonable. The petitioner entered a guilty plea to a murder charge, without any promises, and had a death penalty sentencing trial. The defense strategy involved presenting evidence of the early plea, as acceptance of responsibility, and remorse for his acts. Counsel conducted a limited mental health evaluation of his client but did not present any such evidence at the hearing. The state court found that defense counsel's not presenting mental health evidence at the sentencing hearing was a reasonable strategy. The Court denied additional claims: 1) a shackling claim that the state court finding of a lack of prejudice given the short time of shackling and the facts of the crime were not unreasonable findings and 2) an impartial jury claim denial was not unreasonable. A concurring opinion by Hurwitz states "I doubt that [Elmore] received competent representation" in light of the facts that this was his attorney's first capital case; he entered a plea without any agreement on sentencing; his lawyer did not object to his shackling; his attorney's one hour mitigation hearing; and counsel's failure to investigate Elmore's possible organic brain damage. In spite of that under the "doubly deferential" standard for determining prejudice, he concurs in the denial of the petition.
The court, in a pre-AEDPA case, agreed with the district court that penalty phase trial counsel was ineffective for failing to investigate and present mitigating evidence, but disagreed and found that the ineffectiveness was prejudicial. Counsel had failed to investigate or present evidence of prior sexual abuse in prison, mental illness, neglect and abuse during childhood and substance abuse. "[I]f what counsel knows or should know suggest that further investigation might yield more mitigating evidence, counsel must conduct that investigation." Counsel has a duty to unearth for consideration all relevant mitigation information even if the client refuses to communicate. Also, the failure to prepare penalty phase witnesses violates a critical function of counsel. Finds that trial strategy presumption does not apply when it would contradict defense counsel's testimony rather than filling a gap in memory. Where the jury was utterly unaware of the mitigating evidence at the penalty phase the court concluded that Doe was prejudiced by counsel's failures.
Update: [May 27, 2015] Denied a petition for rehearing and rehearing en banc. Good discussion of the standard necessary to obtain use of a "Doe" pseudonym.
Found that the state court decision was not contrary to any clearly established holding of the Supreme Court, in particular the Court's Cronic decision because, as opposed to Cronic, here the case was only "similar to" our prior precedents, which doesn't make the state court finding unreasonable. Also, within the contours of Cronic, as fairminded jurist could conclude that a presumption of prejudice is not warranted under the facts here that counsel was only absent for a short period and during testimony not relevant to his client's theory of the case.