Kirk Williams v. Mark Nooth

MEMORANDUM

1.The district court properly dismissed petitioner’s ineffective assistance of counsel claim as procedurally defaulted. Petitioner can’t overcome the procedural default based on Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309 , 132 L.Ed.2d 272 (2012), because he didn’t receive ineffective assistance during post-conviction proceedings, see Woods v, Sinclair, 764 F.3d 1109, 1137 (9th Cir.2014).

Post-conviction counsel was ineffective only if it “amounted to incompetence” not to argue that direct-appeal counsel was ineffective for failing to pursue a South-ard-type claim. Harrington v. Richter, 562 U.S. 86 , 131 S.Ct. 770, 788 , 178 L.Ed.2d 624 (2011). In evaluating the strength of that argument, reasonable post-conviction counsel would have known that the Oregon Supreme Court hadn’t even granted review in Southard when direct-appeal counsel filed his brief, and that we “do[] not mandate prescience, only objectively reasonable advice under prevailing professional norms.” Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir.2004); see also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir.1994). Accordingly, reasonable post-conviction counsel could have viewed an attack on…