Nguyen v. Curry

A pro se habeas petitioner's amended claim under 28 U.S.C. § 2254 alleging ineffective assistance of appellate counsel for failure to raise a double jeopardy claim on direct appeal may be excused from procedural default under Martinez v. Ryan and may relate back to the timely filed original claim if there is a common core of facts supporting those grounds for relief stated therein.

In 2003, Ha Van Nguyen was convicted for felony cocaine possession (“Count One”) and felony possession of a forged driver's license (“Count Two”). The court imposed a three-year sentence for Count One, and 25 years to life under California's three-strikes law for Count Two. Nguyen won his appeal on Count Two, and at resentencing, the court reversed its earlier Count One sentence and applied the three-strikes sentence of 25 years to life for the count already served. The court affirmed on second appeal, where new appellate counsel argued the extended sentence violated the Eighth Amendment. Nguyen’s counselor informed him that her appointment ended; he could file in federal court alone, but she failed to mention a possible state habeas petition. Nguyen filed a pro se habeas petition, asserting that his new sentence violated the Eighth Amendment and that his new Count One sentence violated the Fifth Amendment. Nguyen amended his petition after the expiration of the statute of limitations claiming a Sixth Amendment violation of ineffective assistance of appellate counsel (“IAC”) for failure to raise double jeopardy. The Ninth Circuit reversed, holding that Martinez v. Ryan extends to IAC for appellate counsel's failure to raise double jeopardy on appeal and may be excused for cause. If Nguyen was barred from exhausting state remedies because of counsel's failure to comply with procedure, default was external to his control, and his defense was impeded by his counselor's failure, Nguyen need not show actual constitutional disadvantage because IAC is a Sixth Amendment guarantee that counsel will preserve claims for appeal and habeas corpus proceedings. Additionally, the panel concluded because the double jeopardy claim and IAC claims share the common core of operative facts of the original petition, they "relate back," and are thus regarded as timely filed. REVERSED and REMANDED.