    Case: 14-30785   Document: 00513638010      Page: 1   Date Filed: 08/15/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit


                                 No. 14-30785                        FILED
                                                               August 15, 2016
                                                                Lyle W. Cayce
                                                                     Clerk

JEREMY COLEMAN,

                                           Petitioner–Appellant,

versus

JERRY GOODWIN, Warden, David Wade Correctional Center,

                                           Respondent–Appellee.




                Appeal from the United States District Court
                   for the Western District of Louisiana




Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Jeremy Coleman, a Louisiana prisoner, appeals the dismissal of his peti-
tion for a writ of habeas corpus. We reverse and remand.

                                      I.
     On advice of attorney Kammi Whatley, Coleman pleaded guilty of man-
slaughter. He retained attorney Alex Washington to file a direct appeal. The
appellate court denied relief.   At Coleman’s direction, Washington filed a
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                                 No. 14-30785
habeas petition in the convicting trial court, claiming that Whatley had pro-
vided ineffective assistance of counsel (“IAC”) in the course of plea negotia-
tions. The trial court denied the petition. Coleman, by attorney Washington,
appealed to the Louisiana intermediate appellate court, raising the same set
of claims. That court denied relief.

      Coleman, proceeding pro se, wrote a letter to the Louisiana Supreme
Court requesting an extension of time to file a petition. The letter asserted
that Washington had failed to bring certain specific IAC claims, regarding
Whatley’s representation, that Coleman had explicitly instructed Washington
to raise. Further, Coleman asserted that Washington had abandoned the case
by failing to appeal the intermediate court’s denial of relief to the Louisiana
Supreme Court. The Louisiana Supreme Court granted the extension.

      Coleman filed a pro se habeas petition in the Louisiana Supreme Court,
presenting a mixture of new and old claims regarding Whatley’s purported
IAC. Coleman further posited that Washington’s representation was ineffec-
tive by his failure to raise certain of the IAC claims in the lower courts, which
Coleman claimed he had instructed Washington to include in his previous peti-
tions. Therefore, Coleman urged, the state supreme court should excuse his
failure to exhaust those claims. In sum, Coleman raised five IAC claims:
Whatley (1) failed to move for a continuance or withdraw; (2) failed to contact
two alibi witnesses and investigate the case before advising him to plead guilty;
(3) failed to move to suppress Coleman’s confession, and failed to advise Cole-
man, before the guilty plea, that the motion to suppress would be meritorious;
(4) failed to advise Coleman that he would be presumed innocent and that the
state had the burden to prove his guilt at trial; and (5) advised Coleman that,
if he refused the plea offer, he would be convicted and sentenced to life impris-
onment. The Louisiana Supreme Court summarily denied the application.

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                                  No. 14-30785
State ex rel. Coleman v. State, 110 So. 3d 1070 (La. 2013).

      Coleman filed a pro se federal habeas petition claiming that (1) Wash-
ington had provided IAC in post-conviction proceedings for failing to follow
Coleman’s instruction to investigate and interview witnesses who could have
established substantial grounds for a claim of ineffective assistance of trial
counsel (“IATC”) and for failing to raise a claim of IAC based on those grounds,
and (2) his trial counsel, Whatley, provided IAC on the same grounds Coleman
had raised in his pro se filings in the Louisiana Supreme Court. Coleman fur-
ther claimed that, under Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino
v. Thaler, 133 S. Ct. 1911 (2013), Washington’s IAC in the state habeas pro-
ceedings excused Coleman’s failure to present the underlying IATC claims.

      The district court denied relief. It held that Coleman’s claims were un-
exhausted because they had been raised for the first time before the Louisiana
Supreme Court. Further, it held that the claims were not procedurally de-
faulted, because there was no state-court decision that procedurally barred
Coleman’s claims, and the Louisiana Supreme Court had issued only a one-
word denial. The district court therefore declined to address Coleman’s argu-
ments under Martinez and Trevino and dismissed the habeas petition. We
granted a certificate of appealability.

                                          II.
      State prisoners typically must exhaust state remedies before filing a fed-
eral habeas petition. See Sones v. Hargett, 61 F.3d 410, 414 (5th Cir. 1995).
When a prisoner fails to present a given set of claims to the state courts, and
those courts would find that the claims were untimely or otherwise procedur-
ally barred, the claims are procedurally defaulted, and federal courts cannot
review them unless the petitioner shows cause for the default and prejudice
stemming therefrom. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
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                                  No. 14-30785
      As relevant here, IAC of state habeas counsel is good cause in some
states. “[W]hen a State requires a prisoner to raise an [IATC] claim in a col-
lateral proceeding, a prisoner may establish cause for a default of an [IAC]
claim” by showing that (1) the underlying [IATC] claim is substantial and
(2) the prisoner received [IAC] in state habeas proceedings.           Martinez,
132 S. Ct. at 1318. In Trevino, the Court expanded the Martinez rule by replac-
ing its formal, bright-line test with a functional test. Under Trevino, 133 S. Ct.
at 1921, the Martinez rule applies in states “where . . . [the state’s] procedural
framework, by reason of its design and operation, makes it highly unlikely in
a typical case that a defendant will have a meaningful opportunity to raise a
claim of [IATC] on direct appeal . . . .” The Trevino Court determined that
Texas’s procedural framework made it unlikely that most litigants had a mean-
ingful chance to raise IATC claims on direct appeal, so Texas prisoners can
benefit from the Martinez rule. Id.

      This appeal presents three issues: first, whether Coleman’s claims are
procedurally defaulted such that analysis under Martinez and Trevino is
proper; second, whether the Martinez/Trevino rule applies in Louisiana; third,
whether Coleman is entitled to benefit from that rule. We conclude that Cole-
man’s claims are procedurally defaulted and that Louisiana prisoners can, in
principle, benefit from the rule. We remand for the district court to decide
whether Coleman has satisfied the remaining requirements of the rule: that
his underlying IATC claim is substantial and that his state habeas counsel
provided IAC.

                                       III.
      The district court ruled that Coleman’s claims were unexhausted but not
procedurally defaulted. On appeal, Coleman does not say that the claims were


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                                  No. 14-30785
properly exhausted. Therefore, we will not disturb that ruling, because Cole-
man has waived any argument he might have by failing to brief it properly.
See Yohey v. Collins, 985 F.3d 222, 224–25 (5th Cir. 1993). But he does main-
tain that federal courts may review his habeas claims under Martinez and Tre-
vino, which recognize an exception to the procedural-default doctrine and thus
are applicable only if the claims are in fact procedurally defaulted. We con-
clude that they are.

      In violation of state procedural rules, Coleman filed, directly in the state
supreme court, a habeas petition containing new claims. That court denied the
petition in a one-word summary order. That type of order is presumptively a
denial on the merits. Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011). But
the Richter presumption is not conclusive—where there is good reason to think
that the state court rejected the petition for some reason other than an evalu-
ation of the merits, the presumption gives way. We use a three-factor test to
determine whether a state-court decision was on the merits:
   (1) what the state courts have done in similar cases; (2) whether the
   history of the case suggests that the state court was aware of any
   ground for not adjudicating the case on the merits; and (3) whether the
   state courts’ opinions suggest reliance upon procedural grounds rather
   than a determination on the merits.
Woodfox v. Cain, 772 F.3d 358, 371 (5th Cir. 2014) (citing Mercadel v. Cain,
179 F.3d 271, 274 (5th Cir.1999)), cert. denied, 136 S. Ct. 38, 193 L. Ed. 2d 26
(2015). Under that test, when the Louisiana Supreme Court summarily denies
a habeas petition, filed directly in that court, that contains new claims not pre-
sented to lower state courts, that denial is on procedural grounds rather than
on the merits. Mercadel, 179 F.3d at 275–76. Coleman’s claims are therefore
both unexhausted and procedurally defaulted.




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                                 No. 14-30785
                                      IV.
      Because Coleman’s claims are unexhausted and procedurally defaulted,
he must show cause and prejudice. Coleman, 501 U.S. at 750. The only cause
that he presents is IAC of state habeas counsel. Therefore, we must determine
whether the Louisiana procedural scheme is sufficiently similar to Texas’s that
Louisiana prisoners may take advantage of the Martinez/Trevino rule.

      The state does not contend that Martinez and Trevino are inapplicable
in Louisiana; its brief can fairly be read to concede the issue. But procedural
default is not subject to the customary doctrine of waiver. A state’s careless or
inadvertent failure to brief procedural default does not waive the argument;
only a purposeful and deliberate decision to forego the defense will do so.
Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998). There is no indication
that Louisiana’s failure to advance any argument for why it is not like Texas
for purposes of the Martinez/Trevino rule was deliberate or informed. Instead,
it seems to result from careless error. Nonetheless, we conclude that Texas
and Louisiana are materially similar, so Martinez and Trevino apply in
Louisiana.

      Trevino’s analysis of Texas’s system offers guidance. The Court noted
two significant “characteristics” of Texas’s procedure.     Trevino, 133 S. Ct.
at 1918. The first was that it is near-impossible to bring IATC claims on direct
review in Texas, as the Texas courts acknowledged. Id. (citing various Texas
opinions). Texas also allows for such a claim to be brought in a motion for new
trial for which courts may allow “some additional time to develop a further
record”; but, again looking to state court opinions, the Court reasoned that time
constraints, delay in access to a transcript, and the need for a more developed
record on why counsel acted as he did require review via collateral proceedings.
Id. at 1918–19.

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                                        No. 14-30785
       Like Texas, Louisiana allows IATC claims to be brought on direct review
or in a motion for new trial. 1 Further, Texas’s and Louisiana’s procedural rules
regarding motions for a new trial are substantially similar. Texas requires
such a motion to be made within thirty days of sentencing, TEX. R. APP. P.
21.4(a), and the court must rule within seventy-five days, see id.
Rule 21.8(a), (c); see also Trevino, 133 S. Ct. at 1918 (noting these rules). Loui-
siana requires that a new trial motion “be filed and disposed of before sen-
tence.” LA. CODE CRIM. P. art. 853(A). But “[t]he court, on motion of the defen-
dant and for good cause shown, may postpone the imposition of sentence for a
specified period in order to give the defendant additional time to prepare and
file a motion for a new trial.” Id.

       It is not clear how often—or for how long—such extensions are generally
granted.     Notably, Texas argued in Trevino that its time limits are enforced
“more flexibly than [the Court had] suggested,” and it pointed to a few cases in
which extensions and special hearings had been granted. Trevino, 133 S. Ct.
at 1920. But “special, rarely used procedural possibilities” did not cure “Texas
courts’ own well-supported determination that collateral review” is normally
the preferred or only practical means of raising IATC claims. Id.




       1 State v. Ratcliff, 416 So. 2d 528, 530 (La. 1982) (holding that if “the record discloses
evidence needed to decide the issue of [IAC] and that issue was raised by assignment of error
on appeal,” it can be decided on appeal “in the interest of judicial economy”); State v. Woodard,
9 So. 3d 112, 118 (La. 2009) (noting IAC can be argued as the basis for a new trial). But, as
in Texas, the Louisiana Supreme Court and intermediate courts have repeatedly emphasized
that such claims are better brought on collateral review. See State v. Carter, 84 So. 3d 499,
511 n.5 (La. 2012) (“A claim for [IAC] is more properly raised in an application for post-
conviction relief.”); Woodard, 9 So. 3d at 118 (noting that “claims of [IAC] are generally re-
served for post-conviction proceedings.”); Ratcliff, 416 So. 2d at 530 (“[T]his Court normally
holds that [IAC] is an issue more properly raised by writ of habeas corpus.”); see also, e.g.,
State v. Deloch, 380 So. 2d 67, 68 (La. 1980); State v. Ferrand, 356 So. 2d 421 (La. 1978); State
v. McGuire, 179 So. 3d 632, 639 (La. App. 2d Cir. 2015); State v. Carter, 684 So. 2d 432, 438
(La. App. 1st Cir. 1996).
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                                        No. 14-30785
       The second major characteristic noted in Trevino is that not applying
Martinez “would create significant unfairness . . . because Texas courts in
effect have directed defendants to raise claims of [IAC] on collateral, rather
than on direct, review.” Id. at 1919. The Court pointed to Texas cases stating
that IAC claims should typically be brought in collateral proceedings, holding
that even if a claim is brought on direct review, it can also be pursued collat-
erally, and suggesting that failure to raise an IAC claim on direct review is not
grounds for IAC of appellate counsel. Id. at 1919–20. The Court also noted
criminal-bar guidelines suggesting claims should be brought on collateral
review, and it commented that the state could point to only a small number of
cases in which a petitioner received a full evidentiary hearing on IAC on a
motion for new trial. Id.

       The Louisiana courts, as noted above, have likewise repeatedly held that
IATC claims should typically be brought in collateral proceedings, and if a
claim is brought on direct appeal and the court determines that it cannot be
decided on the record, the court will direct that it be brought in a collateral
proceeding. 2 Further, as in Texas, several Louisiana state criminal-practice
guidelines urge that IAC claims are best brought in post-conviction
proceedings. 3



       2 See, e.g., State v. Allen, 955 So. 2d 742, 751–52 (La. App. 5th Cir. 2007) (declining to
review any IAC arguments because some required an evidentiary hearing, and thus instruct-
ing that all claims be heard on post-conviction relief).
       3  See, e.g., GAIL DALTON SCHLOSSER, LA. PRAC. CRIM. TRIAL PRAC. § 28:6 (4th ed.) (“If
a person’s claim is that he was represented by incompetent or ineffective assistance of counsel
at trial, he can usually only raise it by post-conviction petition since that provides for an
evidentiary hearing to air the complaint. Likewise, a claim of incompetent counsel raised on
appeal is likely to be deferred to post-conviction proceedings since the appellate record usu-
ally is inadequate to review the complaint.”) (footnotes omitted); ELDON E. FALLON, LA. PRAC.
TRIAL HANDBOOK FOR LA. LAWYERS § 1:3 (3d ed.) (explaining that IAC is “more properly
raised by application for postconviction relief,” but noting that claims evident from the record
“may” be brought on appeal).
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                                         No. 14-30785
       In at least one case, the trial court did “conduct[ ] a full evidentiary
hearing on the question [of IATC]” during consideration of a motion for new
trial. 4 And at least one other court found IATC on direct appeal. 5 But those
cases appear to be outliers. In Trevino, Texas similarly argued that a handful
of such cases showed that there was a meaningful opportunity for review on
direct appeal, but the Supreme Court disagreed. Trevino, 133 S. Ct. at 1920.

       These similarities between the Texas and Louisiana systems mean that
Trevino applies in Louisiana. Our caselaw supports that conclusion. Before
Trevino, we held that the rule in Martinez did not apply in Texas, Ibarra v.
Thaler, 687 F.3d 222, 227 (5th Cir. 2012), and that Martinez did not apply in
Louisiana, because the state systems were so similar that Ibarra’s reasoning
controlled, In re Sepulvado, 707 F.3d 550, 555–56 (5th Cir. 2013). Now that
Trevino has abrogated Ibarra, the same logic applies in applying Martinez and
Trevino to Louisiana.

       Louisiana’s procedural system “makes it highly unlikely in a typical case
that a defendant will have a meaningful opportunity to raise a claim of [IATC]
on direct appeal . . . .” Trevino, 133 S. Ct. at 1921. Therefore, Louisiana pris-
oners may benefit from the Martinez/Trevino rule if they satisfy its remaining
requirements: that they have a substantial trial IAC claim and that they
received IAC from state habeas counsel.

                                               V.
       The district court did not decide whether Coleman’s IATC claim was



       4   Woodard, 9 So. 3d at 118 (noting the trial court had such a hearing).
       5  State v. Carter, 559 So. 2d 539, 541 (La. App. 2d Cir. 1990) (in which trial counsel
failed to object to an inaccurate statement of law—that “intent to inflict great bodily harm”
is enough to convict for attempted second degree murder, which it is not under state law—
repeatedly given by opposing counsel and the court).
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                                 No. 14-30785
substantial or whether he received IAC in his state habeas proceedings. As
noted above, Coleman alleges a variety of misconduct on the part of Whatley
and Washington. In response, the state does not advance any sustained legal
argument for why those allegations, if true, would not make out valid claims
of trial and habeas IAC. Rather, it contests the factual accuracy of Coleman’s
allegations.

      IAC claims present complex mixed questions of law and fact better ad-
dressed in the first instance by a district court. See Canales v. Stephens,
765 F.3d 551, 571 (5th Cir. 2014). That is especially true here, where the core
of the dispute is factual. We therefore remand for the district court to decide,
in the first instance, whether Coleman has satisfied the remaining two require-
ments under Martinez/Trevino.

                                      VI.
      In summary, Coleman’s claims are defaulted, but Louisiana prisoners
can benefit from the Martinez/Trevino exception to the procedural-default rule
if they can show that they have a substantial IATC claim and received IAC
from state habeas counsel. As an appellate court, we cannot adequately eval-
uate, in the first instance, Coleman’s factual allegations against his trial and
state habeas lawyers.    Therefore, the judgment dismissing the petition is
REVERSED, and the matter is REMANDED. The district court should deter-
mine whether Coleman has satisfied the remaining two requirements to show
cause for procedural default under Martinez and Trevino and should conduct
proceedings as needed. We express no view on what decisions the court should
make on remand.




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