Daniel Cook v. Charles Ryan

This is the second time Daniel Wayne Cook seeks habeas review in this court. See Cook v. Schriro, 538 F.3d 1000, 1007 (9th Cir.2008). Three things have happened since we issued our decision in 2008. First, the Supreme Court issued its decision in Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012). Martinez “changed the landscape with respect to whether ineffectiveness of post-conviction counsel may establish cause for procedural default.” Lopez v. Ryan, 678 F.3d 1131, 1133 (9th Cir.2012). Second, the State of Arizona issued a death warrant and set August 8, 2012, as Cook’s execution date. Third, the district court denied Cook’s Federal Rule of Civil Procedure 60(b)(6) motion for relief from judgment under Martinez. Cook v. Ryan, No. 97-cv-00146-RCB, 2012 WL 2798789 (D.Ariz. July 9, 2012) (unpublished).

Cook asserts that his pretrial counsel was ineffective and that his postconviction relief (“PCR”) counsel was ineffective in Cook’s presentation of that claim. In Cook’s view, Martinez requires us to excuse his procedural default because of ineffective assistance of counsel (“IAC”) in his state PCR proceedings. Cook also asks us to stay his execution so…