                                                                             FILED
                           NOT FOR PUBLICATION                                APR 01 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAVID SCOTT LISTON,                              No. 14-35502

              Petitioner - Appellant,            D.C. No. 2:11-cv-01430-JE

       v.
                                                 MEMORANDUM*
MARK NOOTH,

              Respondent - Appellee.

                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                       Argued and Submitted March 8, 2016
                                Portland, Oregon

Before: FISHER, BERZON and WATFORD, Circuit Judges.

      Petitioner David Scott Liston appeals the district court’s judgment

dismissing his petition for writ of habeas corpus. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253, we review de novo, see Dyer v. Hornbeck, 706 F.3d

1134, 1137 (9th Cir. 2013), and we affirm.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Liston raised several ineffective assistance of trial counsel (IATC) claims in

his state court initial-review collateral proceedings,1 received a judgment on the

merits, then subsequently defaulted those claims by failing to raise them on appeal.

Liston now petitions for habeas relief in federal court based on the defaulted IATC

claims, and seeks to establish cause for their default under Martinez v. Ryan, 132 S.

Ct. 1309 (2012). Liston posits two related theories that would bring his default

within Martinez’s “narrow exception” for “[i]nadequate assistance of counsel at

initial-review collateral proceedings.” Id. at 1315.

      1. First, although Liston’s IATC claims were procedurally defaulted only

when his appellate post-conviction counsel failed to raise them on appeal from his

initial-review collateral proceedings, he contends “any deficiency at the PCR

appellate level is attributable to PCR trial counsel’s failure to develop the

underlying claims.”2 But he does not demonstrate how his initial-review counsel’s

alleged errors actually caused the default of his IATC claims at the appellate




      1
         Under Martinez v. Ryan, the term “initial-review collateral proceedings”
refers to “collateral proceedings which provide the first occasion to raise a claim of
ineffective assistance at trial.” 132 S. Ct. 1309, 1315 (2012).
      2
        Liston was represented by different counsel in the initial-review and
appellate collateral proceedings.

                                           2
collateral review stage.3 We therefore need not decide whether Martinez could

excuse a procedural default subsequent to the initial-review collateral proceedings

when a petitioner is able to show it was caused by the ineffective assistance of

initial-review counsel. Even if that were the case, Liston’s conclusory assertion

would still be insufficient.

      2. Alternatively, Liston contends his initial-review counsel’s deficient

performance caused his IATC claims to be effectively defaulted at the initial-

review stage. Although Liston admits his initial-review counsel raised the IATC

claims, he argues that because counsel failed to adequately develop the claims with

supporting evidence, the initial-review collateral proceedings were not “sufficient

to ensure that proper consideration was given to a substantial claim.” Id. at 1318.

      Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc), held a petitioner

can establish that a “previously exhausted IAC claim” was procedurally defaulted

at the initial-review stage “if new factual allegations either fundamentally alter the

legal claim already considered by the state courts, or place the case in a



      3
         Even if the district court had granted Liston’s request for an evidentiary
hearing on the issue of cause, his plan to “present expert testimony on the standard
of care necessary in post-conviction cases” and “call post-conviction counsel to
testify concerning the reasons that the claims were not fully developed at the
post-conviction trial” could not have established the actual cause of the distinct
failure of his appellate post-conviction counsel to raise the IATC claims on appeal.

                                           3
significantly different and stronger evidentiary posture than it was when the state

courts considered it.” Id. at 1318-19 (citations and internal quotation marks

omitted). If Liston’s federal habeas petition showed the supporting evidence his

initial-review counsel allegedly failed to develop would be sufficient to

“fundamentally alter” the claims he presented in state court, his newly enhanced

IATC claims might qualify under Dickens as procedurally defaulted in the initial-

review collateral proceedings. But because Liston’s petition makes no new factual

allegations whatsoever and provides no reason to believe he has a “new” claim

under Dickens, he has not established procedural default at the initial-review stage.

      Accordingly, Liston cannot demonstrate cause to excuse his procedural

default, so federal habeas review of his IATC claims is barred. See Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

      AFFIRMED.




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