                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             JUN 16 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SCOTT MICHAEL HILL,                              No. 15-35458

              Petitioner - Appellee,             D.C. No. 3:14-cv-05330-RJB

 v.
                                                 MEMORANDUM*
PATRICK GLEBE,

              Respondent - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert J. Bryan, Senior District Judge, Presiding

                        Argued and Submitted June 7, 2016
                               Seattle, Washington

Before: PAEZ, BYBEE, and CHRISTEN, Circuit Judges.

      Hill was convicted of various crimes in Washington state court. He later

filed a habeas petition in federal court. In it, Hill provided evidence suggesting

that he had a colorable diminished capacity defense to his state convictions. He




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
also provided evidence indicating that his trial counsel may have been ineffective

in not discovering and presenting this defense during trial.

      Hill’s ineffective assistance claim was never considered on the merits by the

Washington Supreme Court because Hill’s state habeas counsel did not properly

raise it. Normally, this would mean Hill is procedurally barred from raising this

claim in this federal habeas proceeding. But the federal district court ordered an

evidentiary hearing to determine whether Hill falls under the procedural bar

exception outlined in Martinez v. Ryan, 132 S. Ct. 1309 (2012).

      The government sought this interlocutory appeal on the narrow question of

whether Hill is entitled to an evidentiary hearing in these circumstances. We hold

he is, and affirm.

1.    Hill is entitled to an evidentiary hearing under Martinez v. Ryan. Because

the Washington Supreme Court dismissed Hill’s ineffective assistance claim on

procedural grounds, this would normally mean Hill is procedurally barred from

raising this claim in these federal habeas proceedings. Dickens v. Ryan, 740 F.3d

1302, 1317 (9th Cir. 2014) (en banc). Indeed, the government conceded at oral

argument that procedural bar could apply here. But procedural bar is excused if

the petitioner can show that his state habeas counsel was ineffective in not raising

his trial ineffective assistance claim. Id. at 1318; see also Martinez, 132 S. Ct. at


                                           2
1315. To prove cause, petitioners must be afforded an evidentiary hearing to

develop a proper factual record. Detrich v. Ryan, 740 F.3d 1237, 1246–48 (9th

Cir. 2013) (en banc). Thus, because Hill claims that his state habeas counsel was

ineffective in not properly raising his trial ineffective assistance claim, he should

be afforded an evidentiary hearing to establish cause under Martinez. See Dickens,

740 F.3d at 1321 (holding that the petitioner should be afforded an evidentiary

hearing to determine whether a procedural default should be excused and, if so

“AEDPA [would] no longer appl[y] and a federal court [could] hear this new claim

de novo”); see also Martinez, 132 S. Ct. at 1318 (“Allowing a federal habeas court

to hear a claim of ineffective assistance of trial counsel when an attorney's errors

(or the absence of an attorney) caused a procedural default in an initial-review

collateral proceeding acknowledges, as an equitable matter, that the initial-review

collateral proceeding, if undertaken without counsel or with ineffective counsel,

may not have been sufficient to ensure that proper consideration was given to a

substantial claim.”).

2.    We reject the government’s contention that 28 U.S.C. § 2254(e) requires

Hill’s ineffective assistance claims to be determined solely on the record provided

to the state courts. Section 2254(e) “does not bar a hearing before the district court

to allow a petitioner to show ‘cause’ under Martinez.” Dickens, 740 F.3d at 1321.


                                           3
Indeed, the Washington Supreme Court rejected Hill’s claim on procedural

grounds, so there is not yet a full evidentiary record. See Detrich, 740 F.3d at

1247–48 (“[G]iven that the reason for the hearing is the alleged ineffectiveness of

both trial and PCR counsel, it makes little sense to apply § 2254(e)(2).”).

3.    Finally, there is no merit to the government’s argument that it can prevent

Martinez from applying by simply refraining from raising the procedural bar. The

federal courts can apply the procedural bar sua sponte. See Chaker v. Crogan, 428

F.3d 1215, 1220 (9th Cir. 2005) (“[W]e may sua sponte . . . [find the petitioner]

procedurally barred.”); Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003). And

the state’s position that it must voluntarily raise the procedural bar before a

petitioner can have a hearing under Martinez would lead to absurd results: The

government could opt never to raise the procedural bar, effectively preventing a

petitioner from ever developing a factual record to support his ineffective

assistance claim.

AFFIRMED.




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