                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 24 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JAMES H. HAIRSTON,                               No.   11-99012

              Petitioner-Appellant,              D.C. No. 1:00-cv-00303-BLW

 v.
                                                 MEMORANDUM*
AL RAMIREZ, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                          Submitted December 20, 2018**
                              Pasadena, California

Before: GRABER, RAWLINSON, and BYBEE, Circuit Judges.

      James Hairston was convicted in Idaho of first degree murder and robbery

and sentenced to death. Following state post-conviction proceedings, Hairston

filed a federal petition for habeas corpus challenging his convictions and sentence


      *
             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).
on several grounds, including ineffective assistance of counsel (“IAC”). The

district court dismissed his petition, concluding that, to the extent Hairston was

claiming that his trial counsel was ineffective in investigating and presenting

mitigation evidence, that claim was “procedurally defaulted” because it was not

raised in state court. The district court issued a Certificate of Appealability for

several of the dismissed claims, including the mitigation IAC claim.

      While Hairston’s appeal was pending, the Supreme Court decided Martinez

v. Ryan, 566 U.S. 1 (2012), which held that “[i]nadequate assistance of counsel at

initial-review collateral proceedings may establish cause for [excusing] a

prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9.

At the State’s request, we ordered “a limited remand for reconsideration” of the

mitigation IAC claim “in light of Martinez.” On remand, the district court issued a

decision and order concluding that Hairston did not allege a claim of ineffective

assistance of trial counsel in investigating mitigation evidence, rendering Martinez

inapplicable. The district court denied a Certificate of Appealability on this issue.

      We expanded the original Certificate of Appealability to include whether the

district court erred in “denying relief on the Martinez limited remand.” We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and our review is de novo. Murray

v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014).


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      We conclude that Hairston has sufficiently alleged a claim of ineffective

assistance of trial counsel in investigating and presenting mitigation evidence at

sentencing. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1020–21 (9th Cir. 2001);

Selam v. Warm Springs Tribal Corr. Facility, 134 F.3d 948, 952 (9th Cir. 1998).

Hairston’s habeas petition claims that he was “denied . . . effective assistance of

counsel under the Sixth Amendment,” it references his trial counsel’s duty to

“conduct a complete and thorough investigation into [his] background,” and it

alleges facts that would have been uncovered “had such a mitigation investigation

been conducted.”

      Moreover, throughout these proceedings—at least until the last round of

briefing before the district court—the State itself has acknowledged Hairston’s

mitigation IAC claim. In the original proceedings before the district court, the

State recognized Hairston’s claim that his “trial counsel’s mitigation investigation

was inadequate” and proceeded to argue the merits of that claim. And in this court,

the State requested a limited remand for the district court to consider in the first

instance whether Hairston “can show cause under Martinez” for excusing

procedural default on that claim. The State has thus waived any argument that

Martinez is inapplicable due to a pleading deficiency in Hairston’s habeas petition.

See, e.g., Wood v. Milyard, 566 U.S. 463, 473–74 (2012); Vang v. Nevada, 329


                                           3
F.3d 1069, 1072–73 (9th Cir. 2003); see also Buck v. Davis, 137 S. Ct. 759, 780

(2017).

      We therefore vacate the district court’s decision and order, and remand for

the district court to apply Martinez in the first instance to Hairston’s claim that his

trial counsel was ineffective in investigating and presenting mitigation evidence at

sentencing. In light of our disposition, we decline to reach Hairston’s other

arguments at this time. This panel will retain any future appeals in this case, and

the parties need not repeat briefing on the other issues except as necessary to

provide any additional factual or legal developments.

      VACATED and REMANDED. Costs on appeal awarded to Petitioner-

Appellant.




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