                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-2486
                                      _____________

                                      MALIK MACK,

                                                   Appellant

                                              v.

                       SUPERINTENDENT MAHANOY SCI;
           THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
           THE DISTRICT ATTORNEY OF THE COUNTY OF MONTGOMERY
                              _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-15-cv-01829)
                         District Judge: Hon. Gerald J. Pappert
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 6, 2017

             Before: JORDAN, HARDIMAN, and SCIRICA, Circuit Judges.

                                (Filed: November 9, 2017)
                                    _______________

                                        OPINION*
                                     _______________

JORDAN, Circuit Judge.



       *
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Malik Mack, a Pennsylvania state prisoner, appeals the District Court order

dismissing his petition for habeas corpus as procedurally defaulted. Mack contends that

the default of his ineffective assistance of counsel claim is excused pursuant to Martinez

v. Ryan, 566 U.S. 1 (2012). We granted Mack’s application for a certificate of

appealability “as to whether the District Court erred in concluding that he is procedurally

barred from pursuing his claim that plea counsel was ineffective [because] [r]easonable

jurists could debate whether Martinez ... excuses the default of this claim, and whether

the claim has merit.” (App. at 21.) The government concedes that Martinez may excuse

Mack’s default. We too agree that Martinez applies and may excuse Mack’s default, and

we will therefore vacate the District Court’s order dismissing Mack’s petition for a writ

of habeas corpus and remand to the District Court with instructions to conduct the

analysis that Martinez requires.

I.     BACKGROUND

       Mack pleaded guilty in the Court of Common Pleas in Montgomery County,

Pennsylvania, to one count of third-degree murder and one count of aggravated assault.

The state court sentenced Mack to sixteen-and-one-half to thirty-five years of

imprisonment. He did not file a direct appeal.

       Later, Mack filed a pro se petition for collateral review under Pennsylvania’s Post

Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541, et seq., and the PCRA court

appointed new counsel for him. Mack’s PCRA counsel filed a no-merit letter pursuant to

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988) (en banc), seeking to

withdraw from representing Mack. The court granted the withdrawal and issued a notice

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of its intent to dismiss Mack’s PCRA petition without a hearing. Mack filed a pro se

response but did not raise a claim that plea counsel had been ineffective. The court then

dismissed Mack’s PCRA petition without a hearing. The Pennsylvania Superior Court

affirmed the dismissal, and the Pennsylvania Supreme Court denied allowance of appeal.

       Mack timely filed a petition for a writ of habeas corpus. At that point, he claimed

that his “[p]lea counsel rendered ineffective assistance by failing to adequately

investigate medical and factual state-of-mind evidence; and failed to inform [Mack] that

such evidence would be essential in properly determining guilt; this failure caused

[Mack] to unintelligently, unknowingly and involuntarily plead guilty.” (App. at 122.)

       A Magistrate Judge issued a Report and Recommendation concluding that Mack’s

habeas claim was procedurally barred and that Mack could not avoid the bar by relying

on Martinez. The Report and Recommendation reasoned that, “after PCRA counsel was

permitted to withdraw, petitioner could have preserved the instant claim by raising it in

petitioner’s response to the notice of intention to dismiss PCRA petition, which petitioner

failed to do. [Martinez] does not excuse petitioner’s failure to raise a claim on collateral

appeal.” (App. at 8-9.) The District Court adopted the Report and Recommendation in

full and dismissed Mack’s habeas petition.

       Mack has appealed that dismissal, arguing that the District Court erred by

concluding that Martinez was inapplicable and by not conducting the analysis called for

by Martinez.




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II.    DISCUSSION1

       We normally cannot review a state prisoner’s petition for habeas corpus when the

prisoner’s federal claim has been procedurally defaulted. Coleman v. Thompson, 501

U.S. 722, 750 (1991). A procedural default occurs when an independent and adequate

state procedural rule bars state courts from considering the claim. Id. But we can excuse

the default and review the claim if the prisoner can show cause and prejudice. Id.

       Although cause typically cannot be established by showing ineffective assistance

of counsel in state collateral proceedings, id. at 752, the Supreme Court announced a

narrow exception to that rule in Martinez, 566 U.S. at 9. It said, “a procedural default

will not bar a federal habeas court from hearing a substantial claim of ineffective

assistance at trial if, in [an] initial-review collateral proceeding, there was no counsel or

counsel in that proceeding was ineffective.” Id. at 17. The rule in Martinez will serve to

establish cause when “three conditions are met: (a) the default was caused by ineffective

assistance of post-conviction counsel or the absence of counsel (b) in the initial-review

collateral proceeding ... and (c) the underlying claim of trial counsel ineffectiveness is

‘substantial,’ meaning ‘the claim has some merit[.]’” Cox v. Horn, 757 F.3d 113, 119 (3d

Cir. 2014) (quoting Martinez, 566 U.S. at 14).




       1
         The District Court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253. We exercise plenary review over a district
court’s dismissal of a habeas petition when the district court did not grant an evidentiary
hearing. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002).

                                               4
       Importantly, our inquiry focuses on whether counsel, not the prisoner, raised the

ineffective assistance of counsel claim at the initial-review collateral proceeding. See id.

(explaining that Martinez may apply when ineffective assistance of post-conviction

counsel or absence of counsel caused the default). Indeed, we recently emphasized in

Bey v. Superintendent Greene SCI that, under Pennsylvania law, raising a claim of

ineffective assistance of trial counsel is the responsibility of PCRA counsel. 856 F.3d

230, 243 (3d Cir. 2017). Because that responsibility rests with PCRA counsel, we have

applied Martinez to excuse a procedural default when such counsel has failed to raise an

ineffective assistance of counsel claim. Id. at 243-44.

       Here, neither the Magistrate Judge nor the District Court conducted the analysis

that Martinez requires. The Report and Recommendation’s reasoning – that Martinez did

not apply because Mack could have raised the issue in his pro se filing in the PCRA court

– is inconsistent with Martinez itself.

       In Martinez, a prisoner’s appellate attorney filed a statement that the prisoner

lacked any meritorious claim and the prisoner failed to respond with any claims he

believed his counsel overlooked. 566 U.S. at 6, 18. Even though the prisoner failed to

respond, the Supreme Court remanded the case to determine whether his collateral

counsel was ineffective for conceding any claim of ineffective assistance at trial. Id. at

18. The facts here are similar to those in Martinez: Mack’s PCRA counsel filed a no-

merit letter and Mack failed to raise in his pro se response his claim of ineffective

assistance of plea counsel. Even though Mack responded but failed to raise that claim,

Martinez may still excuse the default if Mack’s PCRA counsel was ineffective for filing a

                                              5
no-merit letter and not raising Mack’s ineffective assistance claim regarding plea counsel.

Thus, the District Court erred by not applying Martinez to determine whether the default

may be excused.

       Our decision in Bey was announced after the District Court dismissed Mack’s

habeas petition but provides further support for our decision. 856 F.3d at 237. We stated

there that, in Pennsylvania, PCRA counsel has the responsibility to raise any claim of

ineffective assistance of counsel. Id. at 243. Because that responsibility rests with PCRA

counsel, we applied Martinez to determine whether the default may be excused. Id. at

243-44. The District Court here failed to appreciate that PCRA counsel, not Mack, had

the responsibility to raise the claim. Thus, it was error not to conduct the Martinez

analysis.

III.   CONCLUSION

       For the foregoing reasons, we will vacate the District Court’s order dismissing

Mack’s petition for a writ of habeas corpus and remand with instructions for the Court to

conduct the analysis that Martinez requires – that is, to determine whether Mack can

establish that (a) the default was caused by ineffective assistance of his PCRA counsel or

the absence of counsel, (b) in an initial-review collateral proceeding, and (c) the

underlying claim of plea counsel ineffectiveness is substantial. Cox, 757 F.3d at 119.




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