ALFONSO V. SENIOR, Jr. v. MARGARET GILBERT, Superintendent

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFONSO V. SENIOR, Jr.,
Petitioner-Appellant,
v.
MARGARET GILBERT, Superintendent,
Respondent-Appellee.
No. 16-35842
D.C. No. 2:15-cv-00952-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted April 13, 2018
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and TEILBORG,** District
Judge.
Petitioner-Appellant Alfonso V. Senior, Jr. (“Senior”) appeals the district
court’s dismissal of his ineffective assistance of counsel claim as procedurally
defaulted in its denial of Senior’s petition for a writ of habeas corpus under 28
U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable James A. Teilborg, United States District Judge for the
District of Arizona, sitting by designation.
FILED
APR 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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we affirm.
We review a district court’s decision to grant or deny a petition for habeas
corpus de novo. See Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000) (citing
McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999)). We likewise review de novo
whether a prisoner asserting a habeas claim exhausted state remedies. See Greene
v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002) (citing Harris v. Pulley, 885 F.2d
1354, 1370 (9th Cir. 1988)).
“[A] state prisoner’s federal habeas petition should be dismissed if the
prisoner has not exhausted available state remedies as to any of his federal claims.”
Coleman v. Thompson, 501 U.S. 722, 731 (1991), modified, Martinez v. Ryan, 566
U.S. 1 (2012). Here, it is undisputed that Senior failed to present the ineffective
assistance of counsel claim during his post-conviction appeal to the Washington
Supreme Court after previously raising the claim to the Washington Court of
Appeals. Accordingly, the relevant claim is now procedurally barred for lack of
exhaustion in state court.
The district court rejected Senior’s argument that Martinez excuses a pro se
petitioner’s failure to present his claim in a motion for discretionary review to a
state supreme court. In Martinez, the Supreme Court established “a narrow
exception” to procedural defaults in holding that “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s

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procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. The
Supreme Court made clear that this exception “does not extend to attorney errors in
any proceeding beyond the first occasion the State allows a prisoner to raise a
claim of ineffective assistance at trial[.]” Id. at 16 (emphasis added). Thus, the
exception does not apply to “appeals from initial-review collateral proceedings,
second or successive collateral proceedings, and petitions for discretionary review
in a State’s appellate courts.” Id. (citations omitted).
This court previously recognized that “[t]he [Supreme] Court in Martinez
was careful to restrict its holding to ineffective assistance in the initial-review
collateral proceeding in state court.” Ha Van Nguyen v. Curry, 736 F.3d 1287,
1295 (9th Cir. 2013) (reading the Martinez exception as specifically limited to
“procedural default by postconviction counsel at the initial-review collateral
proceeding”). The fact that Senior was appearing pro se when he failed to exhaust
his ineffective assistance of counsel claim at the Washington Supreme Court is of
no effect. See Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) (“On its face,
Martinez provides no support for extending its narrow exception to new categories
of procedurally defaulted claims. Martinez did not purport to displace Coleman as
the general rule governing procedural default.”).
Accordingly, “[w]e remain bound by Coleman, which requires that we reject
[Senior]’s attempt to have us remove the obstacle it presents.” Hunton v. Sinclair,

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732 F.3d 1124, 1127 (9th Cir. 2013); see also Pizzuto v. Ramirez, 783 F.3d 1171,
1177 (9th Cir. 2015) (stressing that “further substantive expansion” of Martinez is
“not . . . forthcoming”). And Senior has not otherwise established “cause and
prejudice” to excuse his default under Coleman. 501 U.S. at 724. Thus, Senior is
not entitled to habeas relief on his ineffective assistance of counsel claim.
Finally, we reject Senior’s uncertified claim that the introduction of an out-
of-court statement by an unavailable witness violated his Sixth Amendment rights
under the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 53–54
(2004). The record does not support Senior’s claim and Senior cannot make a
substantial showing that he was denied a constitutional right as required to expand
the certificate of appealability. See Robertson v. Pichon, 849 F.3d 1173, 1187 (9th
Cir. 2017); 28 U.S.C. § 2253(c)(2).
AFFIRMED.

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