                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROLAND SPEIGHT,                                  No.   16-35137

              Petitioner-Appellee,               D.C. No. 2:15-cv-00605-JLR

 v.
                                                 MEMORANDUM*
BERNARD WARNER,

              Respondent-Appellant.


                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                          Submitted December 8, 2017**
                              Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

      Respondent-Appellant Bernard Warner (the State of Washington) appeals

the district court’s order granting Petitioner-Appellee Roland Speight’s 28 U.S.C.




      *
             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).
§ 2254 habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,

and we reverse.

      In federal district court, Speight asserted he received ineffective assistance

of counsel on direct appeal because his appellate counsel failed to raise the

argument that the trial court violated his Sixth Amendment right to a public trial.

Because this claim was not raised in his personal restraint petition, it was

procedurally defaulted. Speight argued that under Martinez v. Ryan, 566 U.S. 1

(2012), and this court’s decision in Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir.

2013), ineffective assistance of his state postconviction counsel constituted cause

for the procedural default of his ineffective-assistance-of-appellate-counsel claim.

The district court agreed, granted Speight’s habeas petition, and stayed the writ

pending the State’s appeal to this court.

      During the pendency of this appeal, the Supreme Court held that ineffective

assistance of postconviction counsel cannot provide cause to excuse the procedural

default of an ineffective-assistance-of-appellate-counsel claim. See Davila v.

Davis, 137 S. Ct. 2058, 2065 (2017). As Speight acknowledged in supplemental

briefing, Davila squarely foreclosed the argument on which the district court relied

to grant his habeas petition. To excuse his procedural default absent application of

the Martinez exception, Speight was required to show cause and prejudice under


                                            2
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Because he has not done so, we

must REVERSE the district court order granting Speight’s habeas petition.

      REVERSED.




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