Kyle J. Rodney, Petitioner-Appellant,
Timothy Filson; Attorney General for the State of Nevada, Respondents-Appellees.
and Submitted December 21, 2018
from the United States District Court for the District of
Nevada No. 3:13-cv-00323-RCJ-VPC Robert Clive Jones, Senior
District Judge, Presiding
Courtney B. Kirschner (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender; Office
of the Federal Public Defender, Las Vegas, Nevada; for
L. Bittick (argued), Deputy Attorney General; Adam Paul
Laxalt, Attorney General; Office of the Attorney General,
Carson City, Nevada; for Respondents-Appellees.
Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges,
and Rosemary Márquez, [*] District Judge.
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
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.
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.
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 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.
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.