Kyle J. Rodney v. Timothy Filson; Attorney General for the State of Nevada

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KYLE J. R ODNEY ,
Petitioner-Appellant,
v.
TIMOTHY F ILSON; A TTORNEY
GENERAL FOR THE S TATE OF
NEVADA ,
Respondents-Appellees.
No. 17-15438
D.C. No.
3:13-cv-00323-
RCJ-VPC
OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Senior District Judge, Presiding
Argued and Submitted December 21, 2018
San Francisco, California
Filed March 1, 2019
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and Rosemary Márquez,* District Judge.
Opinion by Judge Márquez
* The Honorable Rosemary Márquez, United States District Judge
for the District of Arizona, sitting by designation.

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SUMMARY**
Habeas Corpus
The panel vacated the district court’s denial of Nevada
state prisoner Kyle J. Rodney’s pro se 28 U.S.C. § 2254
habeas corpus petition and remanded for the district court to
conduct an analysis of the substantiality of Rodney’s
ineffective-assistance-of-counsel (IAC) claims pursuant to
Martinez v. Ryan, 566 U.S. 1 (2012).
Without allowing discovery, holding an evidentiary
hearing, or engaging in a Martinez analysis, the district court
found, in relevant part, that two of Rodney’s IAC claims
were procedurally defaulted.
The panel rejected Respondent’s argument that Rodney
waived his argument that he can show cause and prejudice
under Martinez to excuse his procedural default. The panel
explained that because Rodney was not represented by
counsel during his initial-review collateral proceeding, he
need only show that his IAC claims are substantial in order
to excuse the procedural default.
The panel could not conclude on the present record that
Rodney’s IAC claims are meritless with respect to the
deficient-performance prong of Strickland v. Washington,
466 U.S. 668 (1984). As to whether the alleged deficient
performance resulted in prejudice, the panel observed that
the district-court record is limited, and that both parties refer
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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R ODNEY V . F ILSON 3
extensively to medical records that were not before the
district court. The panel concluded that the district-court
record is insufficiently developed for it to conclusively
evaluate the substantiality of Rodney’s IAC claims, and that
remand is therefore required.
The panel wrote that on remand the district court may
allow discovery upon a showing of good cause under Rule 6
of the Rules Governing § 2254 Cases, may hold an
evidentiary hearing as warranted, and may consider medical
records and any other evidence relevant to the issue of the
substantiality of Rodney’s IAC claims. The panel wrote that
if the district court determines that the IAC claims are
substantial and thus that the procedural default of the claims
is excused under Martinez, then AEDPA deference will no
longer apply and the claims will be subject to de novo
review.
COUNSEL
Courtney B. Kirschner (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender;
Office of the Federal Public Defender, Las Vegas, Nevada;
for Petitioner-Appellant.
Erin L. Bittick (argued), Deputy Attorney General; Adam
Paul Laxalt, Attorney General; Office of the Attorney
General, Carson City, Nevada; for Respondents-Appellees.

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4 R ODNEY V . F ILSON
OPINION
MÁRQUEZ, District Judge:
Petitioner Kyle J. Rodney (“Rodney”), a Nevada state
prisoner, appeals the district court’s denial of his petition for
writ of habeas corpus under 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We vacate
and remand for the district court to conduct an analysis of
the substantiality of Rodney’s ineffective-assistance-of-
counsel (“IAC”) claims pursuant to Martinez v. Ryan,
566 U.S. 1 (2012).
I
Rodney was convicted following a jury trial on charges
of burglary while in possession of a deadly weapon,
conspiracy to commit robbery, robbery with use of a deadly
weapon, conspiracy to commit murder, attempted murder
with a deadly weapon, and battery with use of a deadly
weapon resulting in substantial bodily harm. He was
sentenced to a combination of concurrent and consecutive
terms totaling 50 years of imprisonment with parole
eligibility after 20 years.
During Rodney’s trial, victim Ralph Monko (“Monko”)
testified that Rodney and a co-defendant beat and robbed
him in the garage of his home after Rodney observed him
win thousands of dollars at a casino. Monko testified that
his skull was crushed during the beating and he was stabbed
in the head with a large knife, which sliced his skin down to
the skull, cracked his orbital bone, and cut every nerve. He
further testified that, as a result of the attack, he had
permanent scars and suffered from dizziness, frequent
seizures, short-term memory problems, a loss of smell and
taste due to brain damage, numbness on the left side of his

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R ODNEY V . F ILSON 5
head, and post-traumatic stress disorder. In addition, Monko
testified that one of the weapons used in the attack caused an
infection in the back of his neck that medical providers
worried would enter his brain and kill him. Rodney’s trial
attorney did not object to Monko’s medical testimony, did
not use medical records to impeach the testimony, and did
not call an expert witness or any treating medical providers
to testify regarding Monko’s injuries.
After his convictions were affirmed on direct appeal,
Rodney filed a pro se state post-conviction petition for writ
of habeas corpus (“PCR Petition”) and requested the
appointment of post-conviction counsel. The trial court
found that Rodney was not entitled to the appointment of
counsel and denied the PCR Petition on the merits. The
Nevada Supreme Court affirmed. Rodney then filed a
second pro se PCR Petition and again requested the
appointment of counsel. The trial court again declined to
appoint post-conviction counsel, and it denied the second
PCR Petition as procedurally barred. The Nevada Supreme
Court again affirmed.
Rodney then filed a timely pro se petition for writ of
habeas corpus under 28 U.S.C. § 2254 in the United States
District Court for the District of Nevada. He later amended
the petition with leave of Court. After denying Rodney’s
request for appointment of habeas counsel, and without
allowing discovery, holding an evidentiary hearing, or
engaging in a Martinez analysis, the district court found, in
relevant part, that two of Rodney’s IAC claims were
procedurally defaulted. The district court then denied
Rodney’s § 2254 petition after rejecting on the merits the
only claim that it found to be properly exhausted. We
granted a certificate of appealability on the issue of whether

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the district court erred in finding that Rodney’s IAC claims
were procedurally defaulted.
II
We review the district court’s denial of Rodney’s habeas
petition and its procedural default determinations de novo.
Runningeagle v. Ryan, 825 F.3d 970, 978 (9th Cir. 2016).
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), factual determinations made by the state
courts are presumed to be correct, and the habeas petitioner
bears “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1). We may grant habeas relief on a claim
adjudicated on the merits in state court only if the state-court
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States,”
28 U.S.C. § 2254(d)(1), or if the decision “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” 28 U.S.C.
§ 2254(d)(2). However, any federally reviewable claims
that were not adjudicated on the merits in state court are
reviewed de novo. Runningeagle, 825 F.3d at 978.
III
Respondents argue that Rodney waived his Martinez
argument by failing to properly present it to the district court.
We reject this argument. Rodney did not clearly raise a
Martinez argument in his response to Respondents’ motion
to dismiss his habeas petition on procedural grounds;
however, he did raise the issue of Martinez in a surreply.
The surreply was filed without prior authorization, but the
district court denied Respondents’ motion to strike it from
the docket. Rodney again raised a Martinez argument in his

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notice of abandonment of unexhausted claims. In analyzing
the issue of waiver, we must be mindful that documents filed
pro se are to be liberally construed. Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam). Furthermore,
Respondents raised the Martinez issue in their reply in
support of their motion to dismiss, and the applicability of
Martinez was clear under the circumstances of Rodney’s
case. The Martinez issue was therefore properly before the
district court.
IV
Rodney does not dispute the district court’s finding that
his IAC claims are procedurally defaulted, but he argues that
he can show cause and prejudice under Martinez to excuse
the procedural default.
A claim is procedurally defaulted if it was rejected by the
state courts based on “independent” and “adequate” state
procedural grounds, Coleman v. Thompson, 501 U.S. 722,
729–32 (1991), or if it is unexhausted and “state procedural
rules would now bar the petitioner from bringing the claim
in state court,” Dickens v. Ryan, 740 F.3d 1302, 1317 (9th
Cir. 2014) (en banc). Federal review of procedurally
defaulted claims is barred unless the habeas petitioner “can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750.1
The absence or ineffective assistance of state post-
conviction counsel generally cannot establish cause to
1 Rodney does not argue that the fundamental-miscarriage-of-justice
exception is applicable.

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excuse a procedural default because there is no constitutional
right to counsel in state post-conviction proceedings. Id. at
752–54. However, in Martinez, the Supreme Court
established an equitable exception, holding that the absence
or ineffective assistance of counsel at an initial-review
collateral proceeding may establish cause to excuse a
petitioner’s procedural default of substantial claims of
ineffective assistance of trial counsel. 566 U.S. at 14. To
excuse a procedural default under Martinez, a petitioner
must show (1) that his ineffective-assistance-of-trial-counsel
claim is “substantial”; (2) that he had no counsel during his
state collateral review proceeding or that his counsel during
that proceeding was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 (1984); (3) that “the
state collateral review proceeding was the ‘initial’ review
proceeding in respect to the ‘ineffective-assistance-of-trial-
counsel claim’”; and (4) that state law requires ineffective-
assistance-of-trial-counsel claims to be raised in initial-
review collateral proceedings. Trevino v. Thaler, 569 U.S.
413, 423 (2013); see also Martinez, 566 U.S. at 13–17. To
show that his claims are “substantial,” a petitioner must
demonstrate that they have “some merit.” Martinez,
566 U.S. at 14. A claim is “insubstantial” if “it does not have
any merit or . . . is wholly without factual support.” Id. at
16.
The Strickland standard requires a showing of both
deficient performance and prejudice. 466 U.S. at 687. To
establish deficient performance, a petitioner “must show that
counsel’s representation fell below an objective standard of
reasonableness. . . . under prevailing professional norms.”
Id. at 688. To establish prejudice, the petitioner “must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability

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R ODNEY V . F ILSON 9
is a probability sufficient to undermine confidence in the
outcome.” Id.
Because Martinez requires a showing that post-
conviction counsel was ineffective under the standards of
Strickland, a petitioner who was represented by post-
conviction counsel in his initial-review collateral proceeding
must show not only that his procedurally defaulted trial-level
IAC claim is substantial but also that there is “a reasonable
probability that the trial-level IAC claim would have
succeeded had it been raised” by post-conviction counsel.
Runningeagle, 825 F.3d at 982. However, a petitioner who
was not represented by post-conviction counsel in his initial-
review collateral proceeding is not required to make any
additional showing of prejudice over and above the
requirement of showing a substantial trial-level IAC claim.
Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en
banc).2
As Respondents concede, Nevada requires prisoners to
raise IAC claims for the first time in initial-review collateral
2 In Detrich, a plurality of a fragmented en banc panel of our court
concluded that a petitioner seeking to excuse a procedural default
pursuant to Martinez need not make any additional showing of prejudice
over and above the required showing of substantiality of the underlying
trial-counsel IAC claim. Detrich, 740 F.3d at 1245–46. We later
determined that a majority of the Detrich panel had rejected that
conclusion as it relates to cases in which the petitioner was represented
by counsel during the initial-review collateral proceeding. Clabourne v.
Ryan, 745 F.3d 362, 377 (9th Cir. 2014), reh’g denied, 868 F.3d 753 (9th
Cir. 2017); see also Runningeagle, 825 F.3d at 982; Pizzuto v. Ramirez,
783 F.3d 1171, 1178–79 (9th Cir. 2015). However, the Detrich
plurality’s conclusion applies in cases in which the petitioner was not
represented by counsel in the initial-review collateral proceeding,
because in such cases there is no post-conviction counsel performance to
evaluate.

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proceedings. See Corbin v. Nevada, 892 P.2d 580, 582 (Nev.
1995) (per curiam) (citing Gibbons v. Nevada, 634 P.2d
1214 (Nev. 1981)). As respondents also concede, Rodney
was not represented by counsel during his initial-review
collateral proceeding. Accordingly, Rodney need only show
that his IAC claims are substantial in order to excuse the
procedural default of the claims under Martinez. See
Detrich, 740 F.3d at 1245.
The parties dispute whether Rodney’s IAC claims are
substantial. Because the district court failed to conduct a
Martinez analysis, it did not make any findings on that issue.
“A standard practice, in habeas and non-habeas cases alike,
is to remand to the district court for a decision in the first
instance without requiring any special justification for so
doing.” Detrich, 740 F.3d at 1248. We have conducted
Martinez analyses in the first instance on appeal only in
cases where the record was “sufficiently complete” for us “to
hold without hesitation” that the underlying IAC claim was
meritless. Sexton v. Cozner, 679 F.3d 1150, 1161 (9th Cir.
2012); see also Clabourne, 745 F.3d at 382. If the
substantiality of an IAC claim is uncertain, or if the record
is insufficiently developed to conclusively evaluate the
claim’s substantiality, remand is required. See Clabourne,
745 F.3d at 376; Sexton, 679 F.3d at 1161.
Rodney argues that trial counsel was ineffective for
failing to investigate or challenge the prosecution’s medical
evidence at trial, failing to timely object to Monko’s medical
testimony, failing to use medical records to impeach
Monko’s medical testimony, and failing to call any medical
experts or treating medical providers to testify regarding
Monko’s injuries. The record reveals that trial counsel failed
to timely object to Monko’s lay testimony concerning
medical diagnoses such as post-traumatic stress disorder,

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R ODNEY V . F ILSON 11
brain damage, severed nerves, fracture, and infection, even
though such testimony was likely inadmissible under state
law. See Nev. Rev. Stat. §§ 50.265, 50.275. The record also
reveals that trial counsel failed to use Monko’s medical
records for impeachment purposes, failed to call an expert
witness to explain the records, and failed to call any treating
medical providers, even though Monko’s medical records
contradict some of Monko’s testimony concerning the
severity of his injuries. On the present record, we cannot
conclude that Rodney’s IAC claims are meritless with
respect to the deficient-performance prong of the Strickland
inquiry.
Determining whether Rodney can demonstrate that trial
counsel’s alleged deficient performance resulted in
prejudice “requires a highly fact- and record-intensive
analysis” that we are ill-equipped to conduct in the first
instance on appeal. Woods v. Sinclair, 764 F.3d 1109, 1138
(9th Cir. 2014) (quoting Detrich, 740 F.3d at 1262 (Watford,
J., concurring)). Because the district court did not allow
discovery or hold an evidentiary hearing, the evidence in the
district-court record is limited. The severity of Monko’s
injuries was potentially relevant to elements of several of the
charges of which Rodney was convicted. The district-court
record contains excerpts of Monko’s medical records;
however, in arguing whether there is a reasonable
probability that the jury’s verdict would have been different
if not for counsel’s alleged deficiencies, both parties refer
extensively to additional medical records that were not
before the district court. Absent unusual circumstances, “we
consider only the district court record on appeal.” Lowry v.
Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).3 Here, the
3 For this reason, we deny Rodney’s Motion for Leave to Expand
Record on Appeal.

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district-court record is insufficiently developed for us to be
able to conclusively evaluate the substantiality of Rodney’s
IAC claims. Accordingly, remand is required.
On remand, the district court “may take evidence to the
extent necessary to determine whether [Rodney’s] claim[s]
of ineffective assistance of trial counsel [are] substantial
under Martinez.” Dickens, 740 F.3d at 1321. Although
review under 28 U.S.C. § 2254(d)(1) is limited to the state-
court record, that evidentiary limitation—and § 2254(d)
itself—“applies only to claims previously ‘adjudicated on
the merits in State court proceedings.’” Dickens, 740 F.3d
at 1320 (quoting 28 U.S.C. § 2254(d); Cullen v. Pinholster,
563 U.S. 170, 186 (2011)). Furthermore, § 2254(e)(2) does
not bar the district court from holding an evidentiary hearing,
because a petitioner seeking to show cause based on a lack
of post-conviction counsel is “not asserting a ‘claim’ for
relief as that term is used in § 2254(e)(2).” Dickens, 740
F.3d at 1321. Accordingly, the district court may allow
discovery upon a showing of good cause under Rule 6 of the
Rules Governing § 2254 Cases in the United States District
Courts, may hold an evidentiary hearing as warranted, and
may consider Monko’s medical records and any other
evidence relevant to the issue of the substantiality of
Rodney’s IAC claims. If the district court determines that
Rodney’s IAC claims are substantial and thus that the
procedural default of the claims is excused under Martinez,
then AEDPA deference will no longer apply and the claims
will be subject to de novo review. Dickens, 740 F.3d at
1321.
VACATED and REMANDED. Motion for Leave to
Expand Record on Appeal DENIED.

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