Anthony Juniper v. Keith Davis, No. 13-7 (4th Cir. 2013)

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The court issued a subsequent related opinion or order on November 16, 2017.

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FILED: December 10, 2013 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7 ANTHONY BERNARD JUNIPER, Petitioner - Appellant, v. KEITH W. DAVIS, Warden, Sussex I State Prison Respondent - Appellee. O R D E R GREGORY, Circuit Judge: Petitioner Anthony Bernard Juniper was convicted in the Circuit Court for the City of Norfolk on four counts of capital murder and other related felony charges. Following a jury trial, Juniper was sentenced to death for each of the capital murder convictions. The jury found the death sentence justified by two aggravating factors, vileness and future dangerousness. The Supreme Court of Virginia affirmed Juniper s convictions and sentences, and the Supreme Court of the United States denied certiorari. See Juniper v. Commonwealth, 626 S.E.2d 383 (Va.), cert. denied, 127 S. Ct. 397 (2006). Juniper filed a petition for writ of habeas corpus in the Supreme Court of Virginia, which was ultimately dismissed. See Juniper 290 v. Warden of Sussex I State Prison, (Va.), cert. denied, 132 S. Ct. 822 (2011). 707 S.E.2d Juniper then filed his federal habeas petition in the United States District Court for the Eastern District of Virginia. The district court denied Juniper s petition, see Juniper v. Pearson, No. 3:11-cv-00746, 2013 WL 1333513 (E.D. Va. 2013), but issued a certificate of appealability on two issues: (1) whether the district court correctly determined that Juniper s allegations in Claim I of his federal habeas petition failed to satisfy the materiality standard under (2) whether Brady Juniper v. was Maryland, entitled 373 to U.S. the 83 (1963); appointment of and new counsel under Martinez v. Ryan, 132 S. Ct. 1309 (2012). We requested expedited briefing on the second issue, asking: Should this case be vacated and remanded under the reasoning of this court s order in Gray v. Pearson, No. 12-5, 2013 WL 2451083 (4th Cir. June 7, 2013)[?] Having considered the parties responses, we find the reasoning of Gray equally applicable to the case at hand, and vacate in part and remand for further proceedings consistent with this order. 2 The Court petitioner in is entitled ineffectiveness procedurally Gray of made to state barred it clear independent habeas why a federal counsel counsel in habeas to pursue order to the raise ineffective-assistance-of-trial-counsel claims in the happenstance that the petitioner is represented by the same counsel in both federal and state habeas proceedings. Therefore, we only provide a short recitation of the facts and reasoning of Gray, as we adopt Gray s reasoning in toto. While federal habeas proceedings were pending in Gray, the Supreme Court issued Martinez v. Ryan, deciding that [w]here, under state counsel law, must claims be of raised ineffective in an assistance initial-review of trial collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. 132 S. Ct. at 1320. Thus, for states like Virginia where a petitioner can only raise an ineffective assistance claim on collateral review Martinez announced that federal habeas counsel can investigate and pursue the ineffectiveness of state habeas counsel procedurally in an barred effort to overcome the default of ineffective-assistance-of-trial-counsel claims. 3 In accordance with Martinez, the Gray panel held that the petitioner was entitled to independent counsel in his federal habeas proceedings to investigate and pursue the ineffectiveness of state habeas counsel, rightly espousing a clear conflict of interest exists in requiring [petitioner s] counsel to identify and investigate potential errors that they themselves may have made in failing to uncover ineffectiveness of trial counsel while they represented [petitioner] in his state post-conviction proceedings. 2013 WL 2451083, at *3. 1 Based on the reasoning of the Gray order, we find that the same outcome is required here. Martinez was decided during federal habeas proceedings. the pendency of Juniper s Juniper had the same counsel in both his state and federal habeas proceedings, and then after Martinez, appoint new, independent counsel to pursue his claims under Martinez. For all petitioned relevant the purposes, district Juniper s 1 court case to is on all fours Notably, it did not matter to the Gray panel that petitioner did not identify a substantial ineffectiveassistance-of-trial-counsel claim under Martinez, see Gray, 2013 WL 2451083, at *3, a reason that compelled the district court to deny Juniper s motion for independent counsel. As in Gray, the fact that Juniper did not identify a substantial claim under Martinez is irrelevant to our disposition of this case. 4 procedurally with Gray. 2 And as in Gray, we find it ethically untenable to require counsel to assert claims of his or her own ineffectiveness adequately in present the state habeas defaulted proceedings in order to ineffective-assistance-of-trial- counsel claims under Martinez in the federal habeas proceedings. To be clear, if a federal habeas petitioner is represented by the same counsel as in state habeas proceedings, and the petitioner requests independent counsel in order to investigate and pursue claims under Martinez in a state where the petitioner may only raise ineffective assistance claims in an initialreview collateral proceeding, qualified and independent counsel is ethically required. for appointment underlying of motion A district court must grant the motion counsel without identifies a assistance claim under Martinez. *3 ( The fact, even if true, 2 regard to substantial whether the ineffective See Gray, 2013 WL 2451083, at that Gray s counsel did not The only arguably relevant distinction between Gray and the case at hand is that Juniper had a second chair counsel appointed for his federal habeas proceedings who did not represent him in state habeas proceedings. The second chair, however, is not qualified under 18 U.S.C. ยง 3599(c) to represent Juniper independently, and therefore this distinction is of no moment. An attorney who is not authorized to represent a federal habeas petitioner independently necessarily fails to serve as the independent counsel called for in Gray. Juniper is entitled to qualified, independent counsel at all stages of his capital habeas proceedings, including the investigation of claims under Martinez. See Martel v. Clair, 132 S. Ct. 1276 (2012). 5 identify any sufficient[ly] substantial claim under Martinez does not undercut their request that independent counsel be appointed to explore Gray s Martinez claims. ) (alterations in original). We respect vacate only to in part the the district appointment of court s independent decision with counsel, and remand for further proceedings in accordance with this order. We defer consideration of Juniper s pending motion to expand the certificate of appealability, motion to exceed page length, and motion for leave to file a reply to the government s response. Entered at the direction of Judge Gregory, with the concurrence of Judge Wynn and Judge Diaz. For the Court /s/ Patricia S. Connor, Clerk 6