Another death penalty case decided by 9th Circuit citing the Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), a case Justice Scalia predicted would add to the chaos of federal courts of appeal.  Clabourne is an example of that foresight in this  1982 conviction. Martinez permits an inmate to allege ineffective assistance of counsel on post conviction proceedings if the state disallows this defense on appeal.

As usual, the facts are brutal and warrant the death penalty.  Clabourne and two of his friends invited a woman to their house to serve drinks.  Upon her arrival, Clabourne raped the woman, stabbed her, and then strangled her.  An autopsy revealed numerous puncture wounds on the body of the victim.  In addition to several witnesses who offered confirming testimony implicating Clabourne, the prosecution introduced a complete confession to a deputy sheriff.  The jury voted the death penalty.

The Arizona Supreme Court reversed the sentencing on grounds of ineffective trial counsel and remanded for resentencing. The judge sentenced the death penalty again and the state supreme court affirmed. At a federal habeas proceeding the district court denied the Clabourne petition alleging ineffective representation of counsel during remand for resentencing for failure to present additional medical evidence and not objecting to the confession (Miranda) introduced at the original trial. Clabourne appealed to the 9th Circuit.

After conceding that a previous 9th Circuit opinion (Deitrich v. Ryan) was inconclusive under Martinez, the panel rambles on about what standards should be used for the Martinez case under an ineffective counsel Strickland claim.  The panel finally decides to remand this 1982 case again after discussing the Miranda issue.  The law on Miranda had changed after the original trial and the panel held the resentencing was a new trial and the decision should be made under the new Supreme Court case.

Comment: Justice Scalia was right. Martinez will make a shambles of federal corpus already in place at the 9th Circuit.  Resentencing is not a trial.  it is only the penalty phase.  This case will remain in the court forever.