                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JAMAAR JEROME WILLIAMS,                          No.   14-16723

              Petitioner-Appellant,              D.C. No.
                                                 2:05-cv-00879-PMP-CWH
 v.

JACKIE CRAWFORD; ATTORNEY                        MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                    Argued and Submitted September 15, 2016
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.

      Petitioner Jamaar Jerome Williams appeals from the district court’s order

dismissing with prejudice several grounds for relief included in his second

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
amended federal habeas petition.1 The claims at issue concern ineffective

assistance of trial and appellate counsel. Because the district court applied the

wrong standard in determining that Williams procedurally defaulted these claims,

we vacate and remand for further proceedings.

      1. Martinez v. Ryan, 132 S. Ct. 1309 (2012), governs whether we may

excuse Williams’s procedural default and reach the merits of his claims. Under

Martinez, a procedural default may be excused when the following four conditions

are met:

      (1) the underlying ineffective assistance of . . . counsel claim is
      “substantial”; (2) the petitioner was not represented or had ineffective
      counsel during the [post-conviction relief (PCR)] proceeding; (3) the
      state PCR proceeding was the initial review proceeding; and (4) state
      law required (or forced as a practical matter) the petitioner to bring the
      claim in the initial review collateral proceeding.

Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (en banc) (citing Trevino v.

Thaler, 133 S. Ct. 1911, 1918 (2013)); see also Nguyen v. Curry, 736 F.3d 1287,




      1
         At issue in this appeal are the claims Williams raised for the first time in his
second amended petition, Grounds for Relief Two and Three(a), (b), and (c).
These grounds encompass all but one of Williams’s claims of ineffective assistance
of trial and appellate counsel. The remaining claim (Three(d)), that Williams’s
appellate counsel was ineffective for failing to communicate with Williams or
provide him with his file, was adjudicated on the merits by the district court, along
with his claim that insufficient evidence supported his conviction. We do not
address the claims adjudicated on the merits here.
                                            2
1293–96 (9th Cir. 2013) (extending Martinez to cases in which the underlying

ineffective assistance of counsel claim concerns appellate counsel).

      The last three prongs of Martinez are clearly satisfied in this case. Williams

was unrepresented during his first state habeas proceeding.2 He therefore meets the

second requirement. Williams also satisfies the third and fourth prongs, as state

habeas proceedings are the “initial review proceedings” for claims of ineffective

assistance of trial and appellate counsel in Nevada, and Williams effectively was

required to bring his claims in those proceedings. See Rippo v. State, 122 Nev.

1086, 1095 (2006) (“Claims of ineffective assistance of trial or appellate counsel

are properly raised for the first time in a timely first post-conviction petition.”

(citing Pellegrini v. State, 117 Nev. 860, 882 (2001))).

      2. Rather than decide in the first instance whether any of Williams’s claims

of ineffective assistance of trial and appellate counsel are “substantial” under

Martinez, and thus whether his procedural default should be excused, we remand

Williams’s case to the district court.

      Remand is appropriate because Williams did not have the opportunity in the

district court fully to brief and develop a record supporting his claims under

Martinez. He alerted the district court that the Supreme Court had decided

      2
       Williams requested that counsel be appointed, but the court did not grant his
request.
                                            3
Martinez while his case was pending and offered to provide additional briefing.

The State’s response to Williams’s notice of supplemental authority and

Williams’s subsequent reply further advised the district court that Martinez was

relevant to the issue raised in this case. Yet the district court did not request

supplemental briefing, hold an evidentiary hearing, or apply Martinez in

determining that Williams had procedurally defaulted Grounds Two and Three(a),

(b), and (c). We remand so that the district court can evaluate whether further

factual development is needed and determine whether Williams’s claims are

substantial under the appropriate standard. See Woods v. Sinclair, 764 F.3d 1109,

1137–38 (9th Cir. 2014), cert. denied sub nom. Holbrook v. Woods, 135 S. Ct.

2311 (2015).

      Further counseling in favor of remand is intervening authority, which has

clarified the scope of Martinez as it applies here. See Dickens, 740 F.3d at 1321

(addressing the availability of an evidentiary hearing to show that a claim is

“substantial” under Martinez); Nguyen, 736 F.3d at 1289.

      We therefore VACATE the district court’s order dismissing Williams’s

claims as procedurally defaulted and REMAND for further proceedings.




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