NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 6 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAMARTICE WRIGHT, No. 22-16456

Petitioner-Appellant, D.C. No. 2:18-cv-02136-RCJ-VCF v.

NETHANJAH BREITENBACH; MEMORANDUM*

ATTORNEY GENERAL FOR THE STATE

OF NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted October 9, 2024** Las Vegas, Nevada

Before: CHRISTEN, BENNETT, and MILLER, Circuit Judges. Dissent by Judge CHRISTEN.

Lamartice Wright appeals from the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition. The only issue is “whether the district court properly

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismissed Claims 2 and 3 as unexhausted.” Dkt. No. 3. Both claims are ineffective

assistance of counsel (“IAC”) claims. “Claim 2” alleges IAC based on trial

counsel’s failure to argue that Wright’s sentences for battery with intent to commit

a crime and battery with use of a deadly weapon violated double jeopardy. “Claim

3” alleges IAC based on trial counsel’s failure to move to suppress a suggestive

photo lineup. We have jurisdiction under 28 U.S.C. § 2253.

We review de novo a district court’s exhaustion and procedural default

determinations. See Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016);

Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). While the district court

properly determined that Wright failed to exhaust the claims, the district court erred

in rejecting Wright’s alternative argument that the claims should be deemed

technically exhausted based on procedural default, and that he could overcome the

default under Martinez v. Ryan, 566 U.S. 1 (2012).1 We therefore vacate the district

court’s denial order and remand for the court to conduct the Martinez analysis.

Because the parties are familiar with the facts, we do not recount them here.

1. Wright argues that both claims were exhausted or that he should be

excused from the exhaustion requirement because (1) the Nevada Supreme Court’s

remand order prohibited him from reraising the claims; (2) the Nevada Supreme

1 “Martinez announced an exception to the . . . rule that ineffective assistance of [post-conviction] counsel cannot establish cause to overcome procedural default.” Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (en banc).

2 Court could have addressed the merits during the first post-conviction appeal before

it remanded his case for appointment of counsel and further proceedings; and (3)

Wright was not required to present the claims again on remand. We reject these

arguments.

Section 2254 requires a petitioner to “exhaust[] the remedies available in the

courts of the State.” 28 U.S.C. § 2254(b)(1)(A). A petitioner “shall not be deemed

to have exhausted the remedies available in the courts of the State, within the meaning

of this section, if he has the right under the law of the State to raise, by any available

procedure, the question presented.” Id. § 2254(c).

On its face, nothing in the Nevada Supreme Court’s remand order limited

Wright’s right to pursue Claims 2 and 3 on remand, including on appeal from the

state district court’s second denial. Although the Nevada Supreme Court specifically

referenced only the plea-offer claim, it did so to provide an “example” as to why

counsel should have been appointed. The court neither stated nor suggested that the

habeas proceedings on remand would be limited to the plea-offer claim. Because

Wright had “the right under the law of the State to raise, by any available procedure,”

id., the claims on remand, but failed to do so (by failing to appeal their denial), he did

not exhaust the claims.

Wright’s second argument—that the Nevada Supreme Court could have

addressed the merits of the claims during Wright’s first post-conviction appeal—is

3 beside the point. As discussed above, the question is whether Wright still had a right

to raise his claims on remand. Because he retained such a right, but failed to exercise

it by failing to appeal, he did not exhaust the claims. See id. Similarly, because

Wright could have pursued his claims on remand and on appeal from the state district

court’s second denial, he had to raise them to exhaust them.2 See id.

2. Wright argues in the alternative that even if he failed to exhaust his

claims, the claims would be procedurally defaulted (and thus technically exhausted),

and he can overcome that default under Martinez. The district court found that

2 Respectfully, we disagree with the dissent’s view that O’Sullivan v. Boerckel, 526 U.S. 838 (1999), compels a different result. First, Boerckel did not address the circumstances here: whether a petitioner must continue to raise his claims on remand—in the same habeas proceeding—to exhaust them. See id. at 839–40 (explaining that the issue presented was “whether a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement”). Second, in explaining that 28 U.S.C. § 2254(c) does not “requir[e] a state prisoner to invoke any possible avenue of state court review,” Boerckel, 526 U.S. at 844, the Court identified two remedies that petitioners need not invoke to exhaust their claims: filing “repetitive petitions” and seeking “remedies [that] are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past,” id. Our holding does not require Wright to do either. Rather, requiring Wright to pursue his claims on remand fits comfortably within Nevada’s standard review process. Finally, Boerckel supports that Wright had to pursue his claims on remand to exhaust them. Boerckel explained that “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” Id. at 845 (emphasis added). Here, the pro se appeal did not constitute one “complete” round of Nevada’s appellate review process because the Nevada Supreme Court remanded the case for further proceedings. Nothing in Boerckel suggests that a petitioner who has succeeded in obtaining a remand from a state appellate court may simply refuse to participate in further state proceedings and declare his claims exhausted.

4 Martinez was inapplicable because Wright claimed only that his post-conviction

counsel erred by failing to appeal from the second denial of Claims 2 and 3. See

Martinez, 566 U.S. at 16 (noting its holding does not apply to “attorney errors in

other kinds of proceedings, including appeals from initial-review collateral

proceedings” (emphasis added)). Accordingly, the district court did not analyze

whether Wright could overcome any default under Martinez. The district court erred

because it misconstrued Wright’s claim of error by post-conviction counsel.

In his opposition to the State’s motion to dismiss, Wright argued that his post-

conviction counsel was ineffective. Wright explained:

As to the second Martinez element, if this Court finds that post- conviction counsel could have raised additional claims beyond the plea offer during the second round of post-conviction litigation, then post- conviction counsel was ineffective for abandoning the other meritorious claims raised by Wright in his pro se petition. This includes Claims 2 and 3 of the Amended Petition.

Wright’s claimed error was broader than just post-conviction counsel’s failure

to appeal Claims 2 and 3. Wright claimed that his post-conviction counsel was

ineffective because counsel had completely failed to address or “abandon[ed]”

Claims 2 and 3 on remand before the state district court. Other parts of Wright’s

opposition supported that broader argument.

We therefore vacate the district court’s order dismissing Claims 2 and 3 and

remand for the court to conduct the Martinez analysis of Wright’s claim that he can

overcome any procedural default because his post-conviction counsel was

5 ineffective for failing to present any arguments supporting Claims 2 and 3 before the

state district court. See Rodney v. Filson, 916 F.3d 1254, 1261 (9th Cir. 2019)

(noting that the standard practice is to remand to the district court for a decision in

the first instance).

VACATED and REMANDED.

6

FILED

JAN 6 2025

Lamartice Wright v. Nethanjah Breitenbach, 22-16456 CHRISTEN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

According to the standard articulated in binding precedent, Wright

adequately raised Claims 2 and 3 when he originally filed his pro se habeas

petition in the Nevada Supreme Court. Because he gave the state court “one full

opportunity” to resolve these claims, he was not required to re-raise them when the

Nevada Supreme Court remanded his petition to the trial court for further factual

development of Claim 1. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). For

these reasons, I respectfully dissent.

“Petitioners are not required to exhaust their claims repeatedly before

proceeding to federal court.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011)

(citing Boerckel, 526 U.S. at 844). “If Petitioner properly argued his claims

through ‘one complete round of the State’s established appellate review process’

during an earlier petition, . . . they are exhausted and can be considered in federal

habeas proceedings.” Id. (quoting Boerckel, 526 U.S. at 845).

The majority concludes that Wright did not exhaust Claims 2 or 3 because he

had “the right under the law of the State to raise, by any available procedure,”

Claims 2 and 3 on remand from the Nevada Supreme Court. See 28 U.S.C. §

2254(c) (A petitioner “shall not be deemed to have exhausted the remedies available

in the courts of the State, . . . if he has the right under the law of the State to raise,

by any available procedure, the question presented.”). But Wright was not required 1 to raise these claims a second time. The fact that Wright could have reasserted

Claims 2 and 3 on remand, or appealed the trial court’s subsequent blanket

dismissal of his entire petition, does not change that Claims 2 and 3 were fully

exhausted when he presented them to the state supreme court in his pro se petition.

The majority’s reasoning contradicts black letter law. In Boerckel, the

Supreme Court specifically addressed the “right . . . to raise” provision of § 2254(c)

and explained that “[a]lthough this language could be read to effectively foreclose

habeas review by requiring a state prisoner to invoke any possible avenue of state

court review, we have never interpreted the exhaustion requirement in such a

restrictive fashion. . . . Thus, we have not interpreted the exhaustion doctrine to

require prisoners to file repetitive petitions.” Boerckel, 526 U.S. at 844 (emphasis

omitted).

Supreme Court precedent requires only that “state prisoners must give the

state courts one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established appellate review process.” Id. at 845. “To

provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’

his claim in each appropriate state court (including a state supreme court with

powers of discretionary review), thereby alerting that court to the federal nature of

the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513

U.S. 364, 365–66 (1995) (per curiam); Boerckel, 526 U.S. at 845). Wright did just

2 that because he “fairly presented” Claims 2 and 3 to the Nevada Supreme Court in

his pro se petition.1 See Kyzar v. Ryan, 780 F.3d 940, 947 (9th Cir. 2015) (“In order

to fairly present an issue to a state court, a [habeas] petitioner must present the

substance of his claim to the state courts, including a reference to a federal

constitutional guarantee and a statement of facts that entitle the petitioner to relief.”

(alteration in original) (quotation marks and citation omitted)).

Wright’s handwritten pro se petition more than adequately teed up the basic

legal and factual bases for Claims 2 and 3. Specifically, when Wright presented

Claim 2 to the Nevada Supreme Court, his pro se petition alleged that his trial

counsel should have noticed that “battery with use of deadly weapon” and “battery

with intent to commit a crime” are essentially duplicate overlapping charges arising

out of the same incident with only one victim. As such, he argued that the State

violated his fundamental rights against double jeopardy by convicting him of both

offenses. His pro se petition left no doubt about the claim he was asserting and the

constitutional basis for it:

Defendant’s trial and appellate counsel failed to investigate any aspect of the case. On a prima facia showing a mature counsel would have noticed that the amended Count 3-Battery With Use of Deadly Weapon (Felony - NRS 200.481) and Count 4-Battery with Intent to

1 The district court reasoned that “the fact that the Nevada Supreme Court could have ruled on the merits instead of remanding for further development of Wright’s claims cannot by itself mean that grounds 2 and 3 are exhausted.” Under binding precedent, the exact inverse is true. 3 Commit a Crime (Felony - NRS 200.400) are duplicative charges in nature arising out of the same incident with only one victim which violates the defendant’s fundamental state and Federal constitutional right against double jeopardy and calling into question counsel’s experience and the evidence relied upon to warrant the charges. The United States Supreme Court has held: “Trial counsel’s failure to raise [a] valid issue of double jeopardy defense in a robbery case constituted ineffective assistance of counsel” and “Appellate counsel’s failure to raise double jeopardy claim on appeal constituted ineffective assistance of counsel . . .” Murphy v. Puckett, 892 F.2d 94 (5th Cir. 1990), Griffin v. US, 598 F.2d 1176 (D.C. App. 1991). . . . Defense’s failure to file any pre-trial motions (i.e. motion to dismiss duplicative charge of battery . . . [)]. . . . violat[ed] his state and federal constitutional right to have effective and competent counsel representing during the critical stages of the criminal process. Pet. for Writ of Habeas Corpus 8–9 (June 7, 2013). By including “a reference to a

federal constitutional guarantee” against double jeopardy and a “statement of facts”

about counsel’s failure to raise double jeopardy in light of the charges against him,

Wright’s pro se petition fairly presented his claims. See Kyzar, 780 F.3d at 947.

Unlike Claim 1, Claim 2 was not an “issue[] that require[d] development of

facts outside the record,” Wright v. State, 130 Nev. 1264 (Feb. 13, 2014), when the

Nevada Supreme Court remanded Wright’s petition and directed that counsel be

appointed. The state court had all it needed to evaluate whether trial counsel was

ineffective for not raising a double jeopardy challenge: Wright was sentenced to

24–120 months on battery with use of a deadly weapon, Nev. Rev. Stat. § 200.481,

and 24–96 months on battery with intent to commit a crime, Nev. Rev. Stat. 4 § 200.400. The Nevada Supreme Court had already decided that a conviction for

those two battery counts, arising from a single incident and involving a single

victim, violate double jeopardy. Litteral v. State, 634 P.2d 1226, 1230 (Nev. 1981)

(“To allow the conviction for a second battery to stand constitutes an impermissible

double punishment.”).

Similarly, in his original presentation of Claim 3, Wright’s pro se petition

alleged that trial counsel provided ineffective assistance by failing to move to

suppress a suggestive photographic lineup. Wright’s petition argued:

The court has established that when reviewing the totality of circumstances of a case, more specifically the evidence gathering in a police photographic lineup, a court should examine the photograph to determine: (1) whether the photographs are strikingly similar and (2) whether the person showing the photographs to the witness did anything to render the procedure unduly suggestive such as directing the witness’ attention to a particular photograph. The Court has also determined that “minor differences in photographs are not sufficient to violate display” or when “each photograph [in the photo array] is altered in the same manner. United States v. Doran, 624 F. Supp. 94, 97 (E.D.N.Y. 1985), United States v. Dunbar, 767 F.2d 72 (3rd Cir. 1985). The Fifth and Fourteenth Amendments prohibits the introduction of evidence at trial when that evidence is tainted by unreliable identification elicited through unnecessarily suggestive photographic display and the federal courts have recognized that habeas corpus relief was warranted when the state court violated defendant’s right to due process by admitting eyewitness identification that were the result of impermissibly suggestive pretrial identification procedures.

5 The Courts held that: “Eyewitness identified at trial following a pretrial identification will be set aside on that ground [as tainted] if the . . . identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. U.S., 390 U.S. 337; Stovall v. Denno, 388 U.S. 293 (1969); Neil v. Biggers, 409 U.S. 188 (1972).

Pet. 24 (alterations in original). In a section titled “Defendant’s conviction and/or

sentence are unconstitutional in violation of his Fourth, Fifth, and Fourteenth

Amendment Right to Due Process of Law,” Wright’s petition laid out additional

facts about the “tainted photo array” and argued that there was insufficient

evidence to tie him to the crime:

The first of the 3 photo lineups was of six African American males all slightly similar in appearance with photo #4 of the array being that of the defendant and out of the six photos displayed in the first photo lineup the defendant’s photo was considerably larger than the other photos, meaning there had been a resize of the photo of the defendant that was so glaringly obvious that anyone, especially the victim, who had the opportunity to view the photo array, would be automatically drawn to the defendant’s photo out of the six photos displayed simply because it is so illegally suggestive that the only result possible is the misidentification of the defendant.

Pet. 26.

We are required to liberally construe Wright’s pro se petition, see Sanders v.

Ryder, 342 F.3d 991, 999 (9th Cir. 2003), but even if that were not the standard,

Wright fairly presented to the state court his argument that trial counsel was

ineffective for failing to move to suppress the prosecutor’s identification witness

despite the suggestive nature of the photo lineup. Wright argued that his claim was 6 grounded in the Fifth and Fourteenth Amendments, and he provided a clear

statement of facts that supported his claim. Kyzar, 780 F.3d at 947. His petition

described the mismatched photos in the lineup and he attached a copy of the lineup

to his petition so the court was able to see the resized photo for itself. Pet. 26, 73

(Ex. L). In doing so, Wright gave the state court “all the facts necessary to give

application to the constitutional principle.” See Davis v. Silva, 511 F.3d 1005,

1010 (9th Cir. 2008); id. at 1009 (“Exhaustion . . . does not require that a ‘habeas

petitioner . . . present to the state court every piece of evidence supporting his

federal claims in order to satisfy the exhaustion requirement.’” (alteration in

original) (citation omitted)).

The Nevada Supreme Court’s decision to remand the petition cannot support

the district court’s exhaustion ruling. Our case law requires that federal courts

independently assess whether a petitioner has met the federal standard of fair

presentation for a claim, even when a state court concludes that a petitioner

inadequately presented it. See Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir.

1986).2 Further, even if the state court were owed deference on the exhaustion

2 See also Hodge v. Hornung, 49 F. App’x 692, 692 (9th Cir. 2002) (“We have previously held that a state court’s denial of a habeas petition for lack of particularity does not establish per se that state remedies have not been exhausted.” (citing Kim, 799 F.2d at 1319–20)); Barrera v. Att’y Gen. of Cal., 473 F. App’x 748, 749 (9th Cir. 2012) (“To determine whether Barrera’s claims have been exhausted, this Court must independently analyze the petition presented to the 7 issue, the Nevada Supreme Court did not rule that it could not decide all of Wright’s

claims. It discussed only the insufficient record for Claim 1, which related to

defense counsel’s failure to convey a favorable plea offer—a claim that likely did

require additional factual development—when it concluded that “[t]he failure to

appoint post-conviction counsel prevented a meaningful litigation of the petition.”

Wright, 130 Nev. at 1264. The same was not true of Claims 2 and 3. To be sure,

Claims 2 and 3 may have been more effectively argued by counsel, but that is not

the standard for determining whether the claims were exhausted. The controlling

question is whether Wright “fairly presented” them to the Nevada Supreme Court.

Kyzar, 780 F.3d at 947.

The majority acknowledges that Wright need not file a “repetitive

petition[],” Boerckel, 526 U.S. at 844, but nowhere do they explain how requiring

him to re-raise Claims 2 and 3 is not repetitive. This is particularly glaring with

respect to Claim 2, which presents a pure question of law previously addressed by

Nevada courts. It is no answer to suggest that, because the state court chose not to

rule on Claim 2, the burden somehow shifted back to Wright to present his claim a

second time. See id. at 845. Having exhausted Claims 2 and 3 in state court,

California Supreme Court to determine whether Barrera satisfied federal exhaustion requirements . . . .”).

8 Wright had the right to pursue those claims in federal court instead of repeating

them on remand.

Because the district court erred when it deemed Claims 2 and 3 unexhausted,

I do not reach whether Wright should be given an opportunity to satisfy Martinez

on remand. Instead, I would remand to the district court with direction to deem

Claims 2 and 3 exhausted and to consider the merits of these claims on the record

presented to the state court.

9