                                                FILED:     December 10, 2013

                                  PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                  No. 13-7


ANTHONY BERNARD JUNIPER,

                  Petitioner - Appellant,

           v.

KEITH W. DAVIS, Warden, Sussex I State Prison

                  Respondent - Appellee.



                                  O R D E R




GREGORY, Circuit Judge:

     Petitioner     Anthony   Bernard      Juniper   was   convicted   in    the

Circuit Court for the City of Norfolk on four counts of capital

murder   and    other   related   felony    charges.       Following   a    jury

trial, Juniper was sentenced to death for each of the capital

murder convictions.       The jury found the death sentence justified

by two aggravating factors, vileness and future dangerousness.

The Supreme Court of Virginia affirmed Juniper’s convictions and

sentences, and the Supreme Court of the United States denied
certiorari.      See Juniper v. Commonwealth, 626 S.E.2d 383 (Va.),

cert. denied, 127 S. Ct. 397 (2006).

     Juniper filed a petition for writ of habeas corpus in the

Supreme Court of Virginia, which was ultimately dismissed.                        See

Juniper    v.   Warden    of   Sussex   I    State    Prison,     707    S.E.2d   290

(Va.), cert. denied, 132 S. Ct. 822 (2011).                  Juniper then filed

his federal habeas petition in the United States District Court

for the Eastern District of Virginia.                The district court denied

Juniper’s petition, see Juniper v. Pearson, No. 3:11-cv-00746,

2013 WL 1333513 (E.D. Va. 2013), but issued a certificate of

appealability on two issues:                (1) whether the district court

correctly determined that Juniper’s allegations in Claim I of

his federal habeas petition failed to satisfy the materiality

standard    under   Brady      v.   Maryland,    373    U.S.      83    (1963);   and

(2) whether     Juniper    was      entitled   to    the    appointment      of   new

counsel under Martinez v. Ryan, 132 S. Ct. 1309 (2012).

     We    requested      expedited     briefing       on   the    second    issue,

asking:

     Should this case be vacated and remanded under the
     reasoning of this court’s order in Gray v. Pearson,
     No. 12-5, 2013 WL 2451083 (4th Cir. June 7, 2013)[?]

Having considered the parties’ responses, we find the reasoning

of Gray equally applicable to the case at hand, and vacate in

part and remand for further proceedings consistent with this

order.

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     The    Court     in   Gray        made     it    clear    why      a    federal      habeas

petitioner    is     entitled        to    independent        counsel        to     pursue   the

ineffectiveness       of       state      habeas         counsel   in       order    to   raise

procedurally        barred          “ineffective-assistance-of-trial-counsel”

claims in the happenstance that the petitioner is represented by

the same counsel in both federal and state habeas proceedings.

Therefore, we only provide a short recitation of the facts and

reasoning of Gray, as we adopt Gray’s reasoning in toto.

     While federal habeas proceedings were pending in Gray, the

Supreme Court issued Martinez v. Ryan, deciding that “[w]here,

under    state     law,    claims         of    ineffective        assistance        of    trial

counsel     must     be     raised         in       an     initial-review           collateral

proceeding, a procedural default will not bar a federal habeas

court from hearing a substantial claim of ineffective assistance

at trial if, in the initial-review collateral proceeding, there

was no counsel or counsel in that proceeding was ineffective.”

132 S. Ct. at 1320.             Thus, for states like Virginia – where a

petitioner can only raise an ineffective assistance claim on

collateral       review    –     Martinez        announced         that      federal      habeas

counsel can investigate and pursue the ineffectiveness of state

habeas     counsel    in       an    effort          to    overcome         the   default    of

procedurally         barred            ineffective-assistance-of-trial-counsel

claims.



                                                3
       In accordance with Martinez, the Gray panel held that the

petitioner was entitled to independent counsel in his federal

habeas proceedings to investigate and pursue the ineffectiveness

of state habeas counsel, rightly espousing “a clear conflict of

interest exists in requiring [petitioner’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 [petitioner] in his state post-conviction

proceedings.”        2013 WL 2451083, at *3. 1           Based on the reasoning

of the Gray order, we find that the same outcome is required

here.

       Martinez      was    decided       during   the   pendency    of    Juniper’s

federal habeas proceedings.                 Juniper had the same counsel in

both his state and federal habeas proceedings, and then after

Martinez,        petitioned      the      district   court    to     appoint      new,

independent counsel to pursue his claims under Martinez.                            For

all     relevant      purposes,        Juniper’s     case    is     on    all    fours




       1
        Notably, it did not matter to the Gray panel that
petitioner   did   not   identify  a   substantial   ineffective-
assistance-of-trial-counsel claim under Martinez, see Gray, 2013
WL 2451083, at *3, a reason that compelled the district court to
deny Juniper’s motion for independent counsel. As in Gray, the
fact that Juniper did not identify a substantial claim under
Martinez is irrelevant to our disposition of this case.



                                             4
procedurally with Gray. 2              And as in Gray, we find it ethically

untenable to require counsel to assert claims of his or her own

ineffectiveness       in    the    state   habeas      proceedings   in   order    to

adequately     present       defaulted         ineffective-assistance-of-trial-

counsel claims under Martinez in the federal habeas proceedings.

       To be clear, if a federal habeas petitioner is represented

by the same counsel as in state habeas proceedings, and the

petitioner requests independent counsel in order to investigate

and pursue claims under Martinez in a state where the petitioner

may only raise ineffective assistance claims in an “initial-

review collateral proceeding,” qualified and independent counsel

is ethically required.             A district court must grant the motion

for    appointment     of    counsel       without     regard   to   whether      the

underlying      motion       identifies         a   ‘substantial’     ineffective

assistance claim under Martinez.                 See Gray, 2013 WL 2451083, at

*3    (“The   fact,   even        if   true,    that   Gray’s   counsel   did     not


       2
        The only arguably relevant distinction between Gray and
the case at hand is that Juniper had a second chair counsel
appointed for his federal habeas proceedings who did not
represent him in state habeas proceedings.    The second chair,
however, is not qualified under 18 U.S.C. § 3599(c) to represent
Juniper independently, and therefore this distinction is of no
moment.    An attorney who is not authorized to represent a
federal habeas petitioner independently necessarily fails to
serve as the independent counsel called for in Gray. Juniper is
entitled to qualified, independent counsel at all stages of his
capital habeas proceedings, including the investigation of
claims under Martinez.    See Martel v. Clair, 132 S. Ct. 1276
(2012).


                                           5
identify any ‘sufficient[ly] substantial’ claim under Martinez

does   not    undercut        their   request    that   independent      counsel    be

appointed to explore Gray’s Martinez claims.”) (alterations in

original).

       We    vacate      in   part    the   district     court’s    decision     with

respect      only   to    the   appointment      of   independent    counsel,      and

remand for further proceedings in accordance with this order.

We defer consideration of Juniper’s pending motion to expand the

certificate of appealability, motion to exceed page length, and

motion for leave to file a reply to the government’s response.

       Entered      at    the    direction      of    Judge   Gregory,    with     the

concurrence of Judge Wynn and Judge Diaz.



                                                For the Court

                                                /s/ Patricia S. Connor, Clerk




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