                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-5


RICKY JOVAN GRAY,

               Petitioner - Appellant,

          v.

EDDIE L. PEARSON, Warden, Sussex I State Prison,

               Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Anthony John Trenga,
District Judge. (1:11-cv-00630-AJT-TCB)


Argued:    May 15, 2013                      Decided:   June 7, 2013


Before DAVIS, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished order. Judge Davis directed
entry of the order with the concurrence of Judge Wynn and Judge
Diaz.


ARGUED: Robert Edward Lee, Jr., VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Charlottesville, Virginia, for Appellant.
Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA,   Richmond,  Virginia,  for  Appellee.    ON   BRIEF:
Johnathan P. Sheldon, SHELDON & FLOOD, PLC, Fairfax, Virginia,
for Appellant.    Kenneth T. Cuccinelli, II, Attorney General,
Richmond, Virginia, for Appellee.
                              ___________________

                                   O R D E R
                              ___________________


    Petitioner Ricky Gray was convicted of capital murder in

the commission of a robbery or attempted robbery, capital murder

of more than one person as part of the same transaction, capital

murder of more than one person, and two counts of capital murder

of a person under the age of fourteen by a person age twenty-one

or older. The jury found the aggravating factor of vileness and

sentenced Gray to death on the two counts of capital murder of a

person   under   the    age   of   fourteen    by    a     person   twenty-one   or

older,    and    life     imprisonment        on     the       remaining   capital

convictions.

    On June 8, 2007, the Virginia Supreme Court affirmed Gray’s

convictions and sentence. Gray v. Commonwealth of Virginia, 645

S.E.2d 448 (Va. 2007), cert. denied, 552 U.S. 1151 (2008). On

March 14, 2008, Gray filed a timely Petition for Writ of Habeas

Corpus in the Virginia Supreme Court, asserting ten distinct

claims of ineffective assistance of his trial counsel. Gray was

appointed   counsel     to    represent    him      in   the    state   collateral

proceedings. Ultimately, the Virginia Supreme Court granted in

part (vacating one of the life sentences) and dismissed in part

Gray’s Petition. Gray then sought federal habeas relief pursuant

to 28 U.S.C. § 2254 in the Eastern District of Virginia. The

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district court appointed the same attorneys who had represented

Gray in the state habeas proceedings to represent him in his

federal habeas proceedings.

       The district court denied all relief, and Gray filed an

appeal of that decision on August 29, 2012. The district court

issued      a   certificate       of   appealability          on     the     two    claims

currently       before    this    Court:     (1)    whether        the    resolution      of

disputed issues of fact by the Supreme Court of Virginia, based

on conflicting sworn declarations without an evidentiary hearing

or an opportunity to create a record through discovery, resulted

in a decision that was based on an unreasonable determination of

fact    under     28     U.S.C.    2254(d)(2);        and    (2)    whether        Gray    is

entitled to the appointment of independent counsel under the

holding of the United States Supreme Court in Martinez v. Ryan,

132    S.   Ct.   1309     (2012),     which     was    handed      down     during       the

pendency of Gray’s federal habeas proceedings. For the reasons

set    forth    below,     we    conclude    that     Gray   was     entitled       to    the

appointment       of     independent        counsel     in    his        federal    habeas

proceeding. Accordingly, we vacate the judgment and remand for

further proceedings, deferring consideration of his first claim.

       Gray’s current counsel in these federal habeas proceedings

served as his counsel in state habeas proceedings, as well. He

argues before us, as he argued before the district court, that

under the reasoning and holding of Martinez, he is entitled to

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counsel who could vigorously examine and present if available

potential claims of ineffective assistance by those very counsel

in his state habeas proceedings. We agree that this is a correct

reading of Martinez.

       It is well settled that a federal habeas court is generally

unable       to    review      a     federal     constitutional          claim    that    was

“procedurally defaulted” due to the defendant’s failure to raise

the claim in accordance with state law requirements. Richmond v.

Polk, 375 F.3d 309, 322 (4th Cir. 2004); Monroe v. Angelone, 323

F.3d 286, 297 n.16 (4th Cir. 2003). This is so because the

judgment in such a case is based on an “independent and adequate

state     ground”         with      which    federal      habeas     courts       will    not

interfere. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).

However, a procedurally defaulted claim can be reviewed by a

federal habeas court if the prisoner can establish “cause” for

the default, and “prejudice” from a violation of federal law.

Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

       The     Supreme      Court      had     previously    held     in    Coleman       that

because      a    habeas       petitioner      has   no    constitutional         right    to

counsel           in      state         post-conviction             proceedings,          the

ineffectiveness           of       post-conviction        counsel     cannot      establish

“cause” to excuse a procedural default. Coleman, 501 U.S. at

757.     The      Court     established        an    exception      to     that    rule    in

Martinez.

                                                4
    In      Martinez,      the     Supreme          Court    considered     “whether     a

federal   habeas     court       may    excuse       a    procedural     default   of   an

ineffective-assistance           claim       when    the    claim   was   not   properly

presented     in   state   court       due     to    an     attorney’s    errors   in   an

initial-review collateral proceeding.” Martinez, 132 S. Ct. at

1313.   The    Court    coined         the    term       “initial-review     collateral

proceeding” to describe the situation where a state makes the

state   collateral      proceedings           the    first     instance    in   which   a

prisoner can bring an ineffective assistance of trial counsel

challenge. Id. at 1315. In states that have such a requirement,

the initial-review collateral proceeding is a “prisoner’s ‘one

and only appeal’ as to an ineffective-assistance claim . . . .”

Id. (quoting Coleman, 501 U.S. at 756). This reality led the

Martinez Court to hold that

    [W]hen a State requires a prisoner to raise an
    ineffective-assistance-of-trial-counsel   claim in  a
    collateral proceeding, a prisoner may establish cause
    for a default of an ineffective-assistance claim . .
    . where appointed counsel in the initial-review
    collateral proceeding, where the claim should have
    been raised, was ineffective under the standards of
    Strickland v. Washington, 466 U.S. 668 (1984).

Martinez, 132 S. Ct. at 1318. In order to overcome the default,

the Martinez Court went on to hold, the “prisoner must also

demonstrate that the underlying ineffective-assistance-of-trial-

counsel claim is a substantial one, which is to say that the

prisoner must demonstrate that the claim has some merit.” Id.


                                              5
     Thus, the Court established an exception to Coleman, and

concluded that federal habeas courts can find “cause” to excuse

a procedural default where

     (1) the claim of ‘ineffective assistance of trial
     counsel’ was a ‘substantial’ claim; (2) the ‘cause’
     consisted of there being ‘no counsel’ or only
     ‘ineffective’ counsel during the state collateral
     review proceeding; (3) the state collateral review
     proceeding was the ‘initial’ review proceeding in
     respect   to    the   ‘ineffective-assistance-of-trial-
     counsel claim’; and (4) state law requires that an
     ‘ineffective assistance of trial counsel [claim] . . .
     be raised in an initial-review collateral proceeding.’

Trevino v. Thaler, No. 11–10189, 2013 WL 2300805(May 28, 2013)

(slip. op., at 8) (quoting Martinez, 132 S. Ct. at 1318).*

     Virginia     requires      prisoners         to    bring    ineffective-

assistance-of-trial-counsel claims, for the first time, in state

collateral proceedings. Johnson v. Commonwealth, 529 S.E.2d 769,

781 (Va. 2000). Because of this, Gray contends that Martinez is

applicable   to   his   case,    and       that   his   unique   circumstance

requires the appointment of new counsel to enable him to fully

investigate any available Martinez claims.


     *
       In Trevino, the Supreme Court elaborated on and expanded
the Martinez exception, explaining that it is applicable not
only in circumstances where a state requires a defendant to
initially raise an ineffective-assistance-of-trial-counsel claim
in a state collateral proceeding, but also when a state, as the
Court found was the case in Texas, maintains a procedural regime
that amounts to such a requirement, i.e., when it is “virtually
impossible” for an ineffective assistance claim to be raised on
direct review. Trevino, slip op., at 2.


                                       6
       Here, Gray argues, in essence, that because he has been

represented by the same counsel in both state and federal post-

conviction proceedings, he is unable to identify any potential

Martinez claims and to rely thereon to assert “cause” to excuse

any    such   otherwise    procedurally           defaulted        claims   because       in

order to do so his current counsel would be required to argue

their   own   ineffectiveness           in    their   representation          of    him   in

state post-conviction proceedings. Gray maintains that such a

task would create a conflict of interest that contravenes his

counsels’ professional ethical duties and thereby corrode their

duty of vigorous representation.

       The Warden contends, unpersuasively, that no such conflict

of interest exists. He argues that “[f]ederal habeas counsel’s

duties are no different now than before Martinez was decided. If

there was a defaulted Strickland claim existing before Martinez

that    counsel   deemed        meritorious       enough      to    present,        counsel

presented it. That has not changed. There is no requirement, and

no need, to appoint additional counsel.” Appellee’s Br. 37. The

Warden also points to the fact that Gray’s present counsel have

failed to identify any potential procedurally defaulted claims,

otherwise     barred      but     for        Martinez,   as        evidence        that   no

substantial claim can be made. We do not agree with the Warden’s

arguments.



                                              7
    We     find   that     a    clear       conflict     of   interest       exists   in

requiring Gray’s counsel to identify and investigate potential

errors that they themselves may have made in failing to uncover

ineffectiveness of trial counsel while they represented Gray in

his state post-conviction proceedings; the conflict is anything

but “theoretical.” J.A. 1634. Indeed, the Virginia State Bar

Ethics Counsel advised Gray’s counsel that they are ethically

barred from investigating their own ineffectiveness. J.A. 1695.

This opinion, in addition to two affidavits of legal ethics

experts who agreed that Gray’s counsel are ethically barred from

representing Gray on his Martinez claims, were presented to the

district    court.   The       district     court    nonetheless        denied    Gray’s

motion for new counsel, principally on the ground that such

counsel    had    failed       to    identify     any    such       potential    claims,

stating    that   “there       has    not    been    demonstrated        a   sufficient

showing for the appointment of additional counsel.”

    This refusal to appoint counsel is unsupportable by basic

legal   ethics    principles.         Other      legal   authorities         agree.   See

David M. Barron, Martinez Casts Doubt on State Post conviction

and Federal Habeas Representation, 27-FALL CRIM JUST. 42 (2012)

(“Because    attorneys         cannot    argue      their     own    ineffectiveness,

[Martinez] creates a potential problem regarding whether state

postconviction counsel should represent the defendant in federal

habeas proceedings.”).

                                             8
       The    fact,      even   if   true,       that    Gray’s   counsel    did     not

identify any “sufficient[ly] substantial” claim under Martinez

does    not   undercut      their    request      that    independent      counsel    be

appointed to explore Gray’s Martinez claims. We see no material

difference between an ethical prohibition on a lawyer’s attempt

to investigate or advance her own potential errors, on the one

hand, and a like prohibition on her attempts to identify and

produce a list of her own errors giving rise to a “substantial

claim” on the other hand.

       Accordingly, because Gray’s counsel are barred from fully

identifying, investigating and presenting his potential Martinez

claims, we vacate the judgment of the district court and remand

the    case   for     further   proceedings        not    inconsistent      with   this

Order. We defer consideration of the merits of the other claim

as to which a certificate of appealability has been granted.

       Entered      at    the    direction        of     Judge    Davis,    with     the

concurrence of Judge Wynn and Judge Diaz.



                                                  For the Court

                                                  /s/ Patricia S. Connor, Clerk




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