Detrich

concurring in the result:

I agree with the plurality that Detrich is entitled to a remand under Martinez v. Ryan, —U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012). I write separately to explain why I disagree that Martinez modifies the prejudice showings required to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and to overcome a procedural default under Coleman v. Thompson, 501 U.S. 722 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991).

There is understandable confusion over how to analyze “prejudice” in this case given that it involves distinct types of prejudice for which the Supreme Court has articulated separate tests. In evaluating the merits of whether trial or post-conviction counsel rendered constitutionally ineffective assistance, we follow the standard set forth in Strickland . This requires a convicted defendant to show both “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . The Strickland prejudice showing is met when “there is a reasonable probability that, but for counsel’s unprofessional…

with whom KOZINSKI, Chief Judge, and GOULD, BEA, and MURGUIA, Circuit Judges, join, dissenting:

I respectfully dissent.

This case presents one question arising under 28 U.S.C. § 2254 (d)(1): whether the Arizona courts unreasonably denied Petitioner’s claim that he received ineffective assistance of counsel (“IAC”) at sentencing. Petitioner’s motion presents us with a different legal question: whether the Supreme Court’s recent decision in Martinez v. Ryan, —U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012), allows Petitioner to overcome his procedural default *1263 as to certain claims of IAC concerning the guilt phase of his trial. The majority decides neither, leaving the sentencing issue for another day and punting the Martinez question to the district court. In my view, a remand without a ruling fosters undue delay. Some of Petitioner’s IAC claims were waived; as to others, which the state court decided on the merits, Martinez is irrelevant; and the remainder do not meet either the “cause” or the “prejudice” prong of Martinez . I would, therefore, deny the motion to remand and decide the sentencing IAC claim now.

A. Petitioner’s Martinez Motion

1. The Evidence at Trial

The…

Judges Pregerson and Reinhardt concur in the entirety of the following opinion. Judge Christen concurs in Part II and in the result. Judges Nguyen and Watford concur in the result.

David Scott Detrich appeals from the district court’s denial of his habeas petition. An Arizona judge sentenced Detrich to death after a jury convicted him of murder, kidnapping, and sexual abuse. The district court held that several of Det-rich’s claims of ineffective assistance of counsel (“LAC”) by his trial counsel were procedurally defaulted because he had failed to raise them during his state post-conviction relief (“PCR”) proceedings. Applying then-governing law, the district court rejected Detrieh’s argument that ineffective assistance of his PCR counsel could excuse his procedural default.

While Detrich’s appeal from the district court decision was pending in this court, the Supreme Court decided Martinez v. Ryan, —U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012). The Court held in Martinez that a state PCR counsel’s ineffective assistance in failing to raise trial-counsel IAC claims can excuse a procedural default. Detrich moved for a remand to the district court to allow that court…

concurring in the judgment:

I agree with the majority that we should grant petitioner’s motion to remand the case to the district court, so that the district court can determine in the first instance whether petitioner’s procedural default may be excused under Martinez v. Ryan, —U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012). As the dueling opinions in this case confirm, assessing whether petitioner’s ineffective assistance of counsel claims have “some merit” under Martinez, id. at 1318 , requires a highly fact- and record-intensive analysis. Allowing the district court to undertake that analysis first is generally the more prudent course. A remand in such circumstances does not merely conserve judicial resources, although that is a particularly important consideration when, as here, we are convened as an en banc court. It also helps to improve the quality of our review process by providing an initial determination that may narrow the bounds of disagreement, and that at a minimum enables the parties to articulate their positions more effectively based on a common point of departure. Since this is a court of review, “not first view,” Holland v. Florida, 560 U.S. 631 , 130 S.Ct.…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SCOTT DETRICH, No. 08-99001 Petitioner-Appellant, D.C. No. v. 4:03-cv-00229-

DCB

CHARLES L. RYAN, Director of Arizona Department of Corrections, Respondent-Appellee. OPINION

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Argued and Submitted En Banc December 10, 2012—Pasadena, California

Filed September 3, 2013

Before: Alex Kozinski, Chief Judge, Harry Pregerson, Stephen Reinhardt, Susan P. Graber, William A. Fletcher, Ronald M. Gould, Carlos T. Bea, Mary H. Murguia, Morgan Christen, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.

Opinion by Judge W. Fletcher; Concurrence by Judge Nguyen; Concurrence by Judge Watford; Dissent by Judge Graber SUMMARY*

Habeas Corpus / Death Penalty

The en banc court granted a motion to remand this appeal for the district court to rule on a motion, made under Martinez v. Ryan, 132 S. Ct. 1309 (2012), by a petitioner challenging his conviction and capital sentence for murder and kidnapping.

After the district…