United States District Court, E.D. Virginia, Alexandria Division
ANTHONY J. TRENGA, District Judge.
Petitioner Ricky Javon Gray ("Gray" or "Petitioner") presents four claims in his Amended Petition for Habeas Corpus [Doc. No. 146]. This matter is before the Court on the Motion to Dismiss the Amended Petition [Doc. No. 152] of Respondent Keith W. Davis, Warden, Sussex I State Prison (the "Warden" or "Respondent").
Factual Background and Procedural History
The facts pertaining to Gray's underlying offense conduct and the procedural history of the case is set forth in the Court's Memorandum Opinion dated April 27, 2012 [Doc. No. 68], which is incorporated herein by reference.
By Amended Order dated May 18, 2012 [Doc. No. 74], the Court dismissed Petitioner's Petition for a Writ of Habeas Corpus and certified two questions, the second of which was whether Petitioner was entitled to counsel in addition to his state habeas counsel for the purpose of assessing whether there existed any defaulted claims that could be asserted in federal habeas proceedings under the holding of Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). By Order dated June 7, 2013 [Doc. No. 91], the Fourth Circuit "conclude[d] that Gray was entitled to the appointment of independent counsel in his federal habeas proceeding [for the purpose of assessing whether there existed any cognizable defaulted claims under the holding of the United States Supreme Court in Martinez v. Ryan ]... and vacate[d] the judgment and remand[ed] for further proceedings, deferring consideration of his first claim." Doc. No. 91. As directed by the Fourth Circuit, such new counsel were to "vigorously examine and present if available potential claims of ineffective assistance" of counsel in his state habeas proceedings that could excuse otherwise defaulted claims of ineffective assistance of trial counsel, as set forth in Martinez. " Id.
On July 3, 2013, this Court appointed independent counsel for Gray and granted Petitioner leave to file an amended petition for a writ of habeas corpus "based on any claims, not previously presented, which may be asserted based on the holding in Martinez. " Doc. No. 94. On July 24, 2013, Gray filed his Motion for the Appointment of Counsel [Doc. No. 96], requesting that the Court appoint additional independent counsel, which the Court granted by its Order dated August 2, 2013 [Doc. No. 102]. Subsequently, on August 20, 2013, Gray filed his Renewed Motion for Appointment of Mental Health Expert [Doc. No. 104] and Motion for Appointment of Investigators [Doc. No. 105], both of which this Court denied by its Orders dated August 28, 2013 [Doc. Nos. 112, 113]. Petitioner then filed his Motion for Appointment of Pharmacologist [Doc. No. 115] on September 6, 2013, requesting the appointment of Dr. Wilkie A. Wilson to assist in the investigation and presentation of a defense of voluntary intoxication, focusing on the effects of PCP on the human brain, and specifically on Petitioner's mental state at the time of the crime. After hearing oral argument, the Court granted that motion in its Order dated September 20, 2013 [Doc. No. 120]. On September 27, 2013, Gray filed his Motion for Appointment of Investigator [Doc. No. 122], requesting that Stephanie Bouis, a clinical social worker and capital mitigation specialist be appointed to further investigate the voluntary intoxication claim by "interview[ing] lay witnesses who observed Petitioner's substance abuse and symptoms of intoxication during the relevant time period." By Order dated October 7, 2013 [Doc. No. 132], the Court granted that motion. Gray then filed his Motion for Appointment of Neuropsychologist [Doc. No. 143] on November 1, 2013, requesting that Dr. Kristine M. Herfkens be appointed by this Court to assist Dr. Wilson in rendering his opinion, specifically to "answer the question of the extent to which organic brain damage may have exacerbated the impact of Petitioner's intoxication and impairment at the time of the crime." By Order dated November 8, 2013 [Doc. No. 139], the Court granted that motion. On December 16, 2013, Petitioner filed his Amended Petition for a Writ of Habeas Corpus [Doc. No. 146], in which he presents four claims:
(1) ineffective assistance of state trial counsel in failing to present evidence of Gray's voluntary intoxication at the time of the crime (Claim XI);
(2) ineffective assistance of state habeas counsel in failing to interview the jurors on the grounds that, had they done so, they would have found that Gray's conviction and death sentence were tainted by one juror's reliance on extraneous influences in violation of his constitutional rights (Claim XII);
(3) ineffective assistance of state trial counsel in failing to present in mitigation a complete picture of the physical, sexual, and emotional abuse perpetrated on Gray (Claim XIII); and
(4) cumulatively ineffective assistance of state trial counsel which was thus prejudicial (Claim XIV).
On January 31, 2014, the Warden filed his Rule 5 Answer and Motion to Dismiss the Amended Petition [Doc. No. 152]. On March 14, 2014, the Court heard oral argument, following which the Court took the Motion to Dismiss under advisement.
Standard of Review under Martinez
Pursuant to the Fourth Circuit's mandate, this Court must consider any "potential claims of ineffective assistance" of counsel in Petitioner's state habeas proceedings that could excuse otherwise defaulted claims of ineffective assistance of trial counsel, as set forth in Martinez. See Doc. No. 91.
A claim is procedurally defaulted if a prisoner fails to abide by a state procedural rule, such that the claim is not properly presented in a state court proceeding. Martinez v. Ryan, 132 S.Ct. at 1316 (citing Coleman v. Thompson, 501 U.S. 722, 747-748, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)). Generally, a procedural default may be forgiven, and thus a federal court may review the defaulted claim, only if a prisoner is able to show both "cause" for the default and "prejudice" from a violation of federal law. See Wainwright, 433 U.S. at 84; Coleman, 501 U.S. at 750. Under the Wainwright/Coleman test, errors on the part of defense counsel in the post-conviction proceedings do not qualify as "cause" to excuse a procedural default, thus barring such procedurally defaulted claims from being heard in federal courts. Coleman, 501 U.S. at 754. In Martinez, the Supreme Court adopted a "narrow exception" to the rule adopted in Coleman. Martinez, 132 S.Ct. at 1315. This "narrow exception" provides that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. The Martinez exception is an equitable, not a constitutional rule, and, as the Fourth Circuit noted in its Order remanding this case [Doc. No. 91], quoting Trevino v. Thaler, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), a claim falls within the Martinez exception 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 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 proceeding.'
Tevino, 133 S.Ct. at 1918 (quoting Martinez, 132 S.Ct. at 1318) (emphasis original).
Imbedded in this Martinez formulation are multiple unsettled issues. With respect the "substantial claim" requirement, it is unclear how the facts are to be viewed for the purpose of determining whether a claim is "substantial, " that is, whether a test akin to that applicable to summary judgment applies or whether the Court may weigh the evidence. It is also unclear whether the "substantial claim" standard of proof, or a higher or lower standard, applies to the "cause" prong of the Martinez test that requires that state habeas counsel was "ineffective." Likewise unclear are what "prejudice" showings are required, given that (1) within the context of a Martinez ineffective assistance of counsel ("IAC") claim, the Strickland standard applies to both whether trial counsel was ineffective (for the purpose of determining whether the IAC claim is "substantial") and also whether state habeas counsel was ineffective (for the purposes of determining whether the "cause" prong of the Martinez analysis is satisfied). Unsettled in this regard is whether the Strickland prejudice prong applicable to the "cause" prong of the Martinez analysis is based on the prospects of a different result in the state court habeas proceedings or the trial court proceedings, or both. It must also be remembered, the Martinez exception applies only to establishing the "cause" prong of the Coleman "cause and prejudice" test, so that it would appear that once the "cause" prong of the Martinez test is satisfied, a federal habeas petitioner must still satisfy the "prejudice" prong of the Wainwright and Coleman test; and the question arises whether that showing of prejudice imposes any additional evidentiary showing.
As to the requirement that a petitioner make a showing that his defaulted claim is "substantial, " we know from Martinez that a claim is "substantial" if it has "some merit." Martinez, 132 S.Ct. at 1318-19. In adopting that standard, the Court in Martinez referenced generally the standards for issuing certificates of appealability, as set forth in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Stated otherwise, a claim is "insubstantial" if "it does not have any merit or is wholly without factual support." Martinez, 132 S.Ct. at 1319. Based on this explanation and reference in Martinez, it appears clear that the required showing of a "substantial claim" is simply a preliminary filter, with a standard of proof significantly lower than for success on the merits, used solely for determining whether the Court should proceed further to a final determination of the merits of the claim, with, as warranted, the development of a more extensive record or an evidentiary hearing. Nevertheless, the Court concludes that in making that determination, a court may consider the weight and reliability of the evidence presented. Based on the formulation in Martinez, and within the context of a defaulted IAC claim, the Court also concludes that the "substantiality" showing requirement applies to both prongs of the Strickland test applicable to whether state habeas counsel was "ineffective." See Clabourne v. Ryan, 745 F.3d 361, 376 (9th Cir. 2014) (holding that, with respect to a Martinez claim pertaining to the ineffectiveness of state habeas counsel, a petitioner must make a "substantial" showing with respect to both the performance and the prejudice prongs of the Strickland standard); cf. Detrich v. Ryan, 740 F.3d 1237, 1245-46 (9th Cir. 2013) (en banc) (Fletcher, J., plurality) ("a prisoner need show only that his PCR [post-conviction relief] counsel performed in a deficient manner" and "need not show actual prejudice resulting from his PCR counsel's deficient performance, over and above the required showing that the trial counsel IAC claim be "substantial" under the first Martinez requirement.").
With respect to "prejudice, " the Court concludes that Petitioner must also make the required "substantiality" showing with respect to the probability of a different result (1) with respect to trial court proceedings as to his trial counsel IAC claim; and (2) with respect to state habeas proceedings as to his claim that state habeas counsel was "ineffective." Finally, the Court concludes that the "prejudice" prong of the Wainwright/Coleman "cause and prejudice" test is satisfied by a showing that the petitioner's underlying claim is a "substantial" one. With these issues addressed, the Court will consider each of Petitioner's alleged Martinez claims set forth in his Amended Petition.
Claim XI: Voluntary Intoxication
Gray alleges his state trial counsel were ineffective for failing to present, at both the guilt and sentencing phases of his trial, evidence supporting the defense that he was so intoxicated at the time of the Harvey murders that he was incapable of deliberation and premeditation. Petitioner further alleges under Martinez that his state habeas counsel were ineffective in failing to assert this underlying IAC claim in state habeas proceedings. In order to make the required showing under Martinez, Gray must demonstrate that: (1) there was a "defaulted claim"; (2) the claim of ineffective assistance of trial counsel was a "substantial claim; and (2) there is "cause" for the default, in that that his state habeas counsel were "ineffective" under Strickland. See Martinez, 132 S.Ct. at 1315-1320.
As to Claim XI, based on Gray's alleged voluntary intoxication, the parties are in agreement that trial counsel failed to assert a defense of voluntary intoxication during the guilt phase, his state habeas counsel failed to assert the ineffectiveness of trial counsel on this basis, and to this extent, this claim of ineffectiveness of trial counsel is a "defaulted claim" cognizable under the "narrow exception" of Martinez. The parties appear to otherwise part company on all other issues associated with this claim under Martinez, including (1) whether Gray's IAC claim based on trial counsel's failure to raise the defense of voluntary intoxication during the guilt phase is a "substantial" claim and whether state habeas counsel was "ineffective" when it did not raise that IAC claim in state habeas proceedings; and (2) whether Gray's IAC claim based on trial counsel's failure to present Gray's voluntary intoxication in mitigation during the penalty phase is, in fact, a defaulted claim cognizable under Martinez, since trial counsel did raise with the jury during the penalty phase Gray's drug use at the time of the murders, and state habeas counsel raised in state habeas proceedings trial counsel's ineffectiveness during the penalty phase based, in part, on how Gray's drug use was presented to the jury and the Supreme Court of Virginia ruled on that contention on the merits.
A. Whether Gray's IAC Claim Based on Trial Counsel's Failure to Raise a Voluntary Intoxication Defense is a "Substantial Claim"
In order to establish that a claim of ineffective assistance by state trial counsel is "substantial, " a "prisoner must demonstrate that the claim has some merit." Martinez, 132 S.Ct. at 1318. This means that the claim has some legal and factual support. Id. at 1319. For this reason, the inquiry into whether a petitioner's IAC claim is "substantial" is inextricably bound up with whether he has made the necessary showing under the Strickland standard that (1) "counsel's performance was deficient, " and (2) "that the deficiency prejudiced the defense." Kelly, 650 F.3d 477, 493 (2011) (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). For the purpose of obtaining final relief with respect to an IAC claim, this two-prong Strickland analysis imposes a "high bar" and courts must assess trial counsel's efforts with "scrupulous ...