Joshua Marsing v. Jeff Premo

MEMORANDUM

Joshua Marsing, an Oregon state court prisoner, appeals from the district court’s denial of his petition for a writ of habeas corpus. As the parties are familiar with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The district court correctly held that Marsing’s procedural default of the ineffective assistance of trial counsel claim was not excused under Martinez v. Ryan, —- U.S. -, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012). To show excusable cause for a procedurally defaulted ineffective assistance of counsel claim, a petitioner must establish, among other things, that (1) the claim is substantial and (2) that his post-conviction relief (PCR) counsel was ineffective for not bringing the claim in state court. Id. at 1320 . “To establish ineffective assistance of counsel, [Marsing] must demonstrate (1) that counsel was ineffective and (2) that counsel’s deficient performance prejudiced him.” Smith v. Ryan, 823 F.3d 1270, 1296 (9th Cir. May 26, 2016) (citing Strickland v. Washington, 466 U.S. 668, 692 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)).

1. Marsing’s ineffective assistance of trial counsel claim is not…