ROLAND SPEIGHT V. BERNARD WARNER, No. 16-35137 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 12 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROLAND SPEIGHT, No. Petitioner-Appellee, 16-35137 D.C. No. 2:15-cv-00605-JLR v. MEMORANDUM* BERNARD WARNER, Respondent-Appellant. Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding Submitted December 8, 2017** Seattle, Washington Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges. Respondent-Appellant Bernard Warner (the State of Washington) appeals the district court’s order granting Petitioner-Appellee Roland Speight’s 28 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 2254 habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we reverse. In federal district court, Speight asserted he received ineffective assistance of counsel on direct appeal because his appellate counsel failed to raise the argument that the trial court violated his Sixth Amendment right to a public trial. Because this claim was not raised in his personal restraint petition, it was procedurally defaulted. Speight argued that under Martinez v. Ryan, 566 U.S. 1 (2012), and this court’s decision in Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), ineffective assistance of his state postconviction counsel constituted cause for the procedural default of his ineffective-assistance-of-appellate-counsel claim. The district court agreed, granted Speight’s habeas petition, and stayed the writ pending the State’s appeal to this court. During the pendency of this appeal, the Supreme Court held that ineffective assistance of postconviction counsel cannot provide cause to excuse the procedural default of an ineffective-assistance-of-appellate-counsel claim. See Davila v. Davis, 137 S. Ct. 2058, 2065 (2017). As Speight acknowledged in supplemental briefing, Davila squarely foreclosed the argument on which the district court relied to grant his habeas petition. To excuse his procedural default absent application of the Martinez exception, Speight was required to show cause and prejudice under 2 Coleman v. Thompson, 501 U.S. 722, 750 (1991). Because he has not done so, we must REVERSE the district court order granting Speight’s habeas petition. REVERSED. 3
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