                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

PAUL EZRA RHOADES,                     
                         Petitioner,
                                       
                                           No. 11-80283
                v.
                                            OPINION
RANDY BLADES,
                       Respondent.
                                       
                Filed November 17, 2011

Before: Ronald M. Gould, Jay S. Bybee, and Carlos T. Bea,
                    Circuit Judges.

                     Per Curiam Opinion




                           20385
20386                RHOADES v. BLADES




                        COUNSEL

Oliver Loewy, Teresa A. Hampton, Capital Habeas Unit, Fed-
eral Defender Services of Idaho, Boise, Idaho, for petitioner
Paul Ezra Rhoades.

L. LaMont Anderson, Deputy Attorney General, Chief, Crim-
inal Law Division Capital Litigation Unit, Boise, Idaho, for
respondent Randy Blades.
                       RHOADES v. BLADES                   20387
                          OPINION

PER CURIAM:

   We consider Paul Ezra Rhoades’s Motion for a Stay of
Execution Pending United States Supreme Court Decision in
Martinez v. Ryan, No. 10-1001 (cert. granted June 6, 2011).
Rhoades seeks a stay of his impending execution, leave to file
successive petitions for habeas corpus relief in his two capital
cases under 28 U.S.C. § 2244(b)(3)(A), and appointment of
new counsel to represent him in pursuing those petitions.
Rhoades contends that his federal habeas corpus counsel,
some of whom continue to represent him in this motion, were
unconstitutionally ineffective because they did not have
Rhoades tested for brain damage when litigating his claim
that trial counsel had ineffectively represented Rhoades dur-
ing the penalty phase of his two capital trials. He acknowl-
edges that “courts have uniformly rejected the claim that there
is a constitutional right to effective assistance of counsel in
post-conviction proceedings,” and that the only way he could
be entitled to file a successive petition is if the Supreme Court
holds that there is such a right in Martinez.

   [1] This motion was filed less than 48 hours before
Rhoades’s pending execution. We consider “not only the like-
lihood of success on the merits and the relative harms to the
parties, but also the extent to which the inmate has delayed
unnecessarily in bringing the claim,” recognizing that there is
a “strong equitable presumption against the grant of a stay
where a claim could have been brought at such a time as to
allow consideration of the merits without requiring entry of a
stay.” Nelson v. Campbell, 541 U.S. 637, 649-50 (2004).
Rhoades could have brought his claim any time after the
Supreme Court granted certiorari in Martinez, more than five
months ago. Further, the case was argued to the United States
Supreme Court on October 4th, and Rhoades could have made
assertions informed by that argument after that date. How-
ever, there is no legitimate reason for bringing this motion at
20388                 RHOADES v. BLADES
the 11th hour, and Rhoades offers no argument to overcome
this equitable presumption.

   [2] But even if Rhoades could overcome this presumption,
he must also demonstrate that he is likely to succeed on the
merits of his successive habeas corpus petition. See Beaty v.
Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011). This would
require the Supreme Court to announce a new rule in Marti-
nez that is both retroactively applicable under 28 U.S.C.
§ 2244(b)(2)(A) and applies to the facts of Rhoades’s case. In
Martinez, we found petitioner was procedurally defaulted
from asserting ineffective assistance of trial counsel because
his state-appointed appellate counsel had failed to raise this
claim in his initial state post-conviction proceeding. Martinez
v. Schriro, 623 F.3d 731, 743 (9th Cir. 2010). In contrast,
Rhoades’s federal habeas corpus counsel presented his fully
developed ineffective assistance of counsel claim, which we
rejected on the merits. See Rhoades v. Henry, 596 F.3d 1170,
1189 (9th Cir. 2010). Rhoades now contends that his counsel
was unconstitutionally ineffective because, while counsel
sought the opinion of a neuropsychologist and a psychiatrist,
counsel did not have Rhoades tested for brain damage.
Rhoades argues the results of this test would have established
that trial counsel was unconstitutionally ineffective because
trial counsel failed to investigate, develop, and present mental
state issues. These issues were well presented by counsel, and
we analyzed them and rejected them on the merits. Id. at
1189-95.

   [3] We decline to speculate as to why the Supreme Court
granted certiorari in Martinez or what its eventual holding
may be. But there are substantial procedural differences
between Martinez’s and Rhoades’s situation. It is entirely
speculative to think that the Supreme Court might render a
ruling in Martinez totally altering the long-standing rule that
an ineffective assistance of counsel claim cannot be brought
as to post-conviction proceedings. Even if the court estab-
lishes some exception in Martinez, there is no certainty, and
                     RHOADES v. BLADES                  20389
we think no substantial likelihood that its scope would cover
Rhoades’s last minute claims and be made retroactive. Also,
Rhoades’s underlying argument that federal habeas corpus
counsel ineffectively litigated his ineffective assistance of
counsel claim is in our view unlikely to satisfy the require-
ments of Strickland v. Washington, 466 U.S. 668, 687 (1984),
under which he would have to show both deficient perfor-
mance and prejudice. Rhoades’s speculation that granting this
motion may ultimately allow him to overturn his death sen-
tence via a successive habeas corpus petition is just that—
speculation—and does not meet his burden to establish that he
is likely to succeed on the merits.

  Rhoades’s Motion to Proceed In Forma Pauperis is
GRANTED. Rhoades’s Motion for a Stay of Execution Pend-
ing United States Supreme Court Decision in Martinez v.
Ryan is DENIED. Also, to the extent his related requests for
new counsel to be appointed and for leave to file a successive
habeas corpus petition are properly before us now, those
requests are also DENIED.
