NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 18-3509 _______________

GABRIEL ROBERT GONZALEZ, Appellant

v.

SUPERINTENDENT HOUTZDALE SCI; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-09-cv-02029) District Judge: Honorable Anita B. Brody _______________

Submitted Under Third Circuit L.A.R. 34.1(a): January 17, 2020 _______________

Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.

(Filed: February 4, 2020)

______________

OPINION ∗ ______________

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PORTER, Circuit Judge.

Gabriel Gonzalez appeals the District Court’s an order denying his

habeas petition. Gonzalez’s counsel in his state postconviction proceedings

procedurally defaulted Gonzalez’s claim that his trial counsel provided ineffective

assistance. A federal court ordinarily lacks jurisdiction in habeas proceedings to consider

a procedurally defaulted claim. See Davila v. Davis,

, 2064–65 (2017).

Gonzalez maintains that we should excuse his procedural default under an equitable

exception. We will not excuse the default, so we will affirm the District Court.

I

In March 2000, police arrested Gabriel Gonzalez for theft. While the police

detained Gonzalez at the local precinct, they received an anonymous tip about a

suspected murder of a pizza delivery man. Upon interrogation, Gonzalez confessed to the

crime. Before trial, Gonzalez’s trial counsel moved to suppress Gonzalez’s confession.

The state trial court denied the motion.

At trial, Gonzalez called three witnesses, including an attorney who met him at the

police station after his interrogation. None of the witnesses testified that Gonzalez had a

reputation as a peaceful, honest, or law-abiding person. At the end of trial, the jury

convicted Gonzalez of second-degree murder, burglary, and possession of an instrument

of crime, and he was sentenced to life imprisonment.

Gonzalez retained new counsel for his direct appeal. Under Pennsylvania

procedural rules in effect at that time (“pre-Grant regime”), Gonzalez raised claims of

ineffective assistance of trial counsel. See Commonwealth v. Hubbard,

, 695

2 n.6 (Pa. 1977), overruled by Commonwealth v. Grant,

(Pa. 2002). 1

Gonzalez claimed that his trial counsel provided ineffective assistance by failing to call

any character witnesses. On appeal, Gonzalez submitted at least twelve affidavits from

various witnesses attesting to his good character. The Pennsylvania appellate court denied

the claim principally because the declarants’ statements “constitute[d] individual

opinions” about Gonzalez’s “peaceful nature and would have been inadmissible at trial.”

A1232. Gonzalez sought review in the Pennsylvania Supreme Court, but it denied him

permission to appeal.

Gonzalez filed a pro se habeas petition under Pennsylvania’s Postconviction Relief

Act (“PCRA”). The PCRA court appointed counsel for him. His PCRA counsel filed an

amended PCRA petition. Neither of Gonzalez’s PCRA petitions raised an ineffective-

assistance-of-trial-counsel claim based on the lack of character evidence introduced at

trial. Gonzalez’s PCRA petition failed.

Next, Gonzalez filed a pro se § 2254 petition in the District Court. The District

Court eventually appointed counsel, who filed an amended § 2254 petition. Gonzalez’s

amended § 2254 petition tries to remedy the inadmissibility of the character-witness

affidavits he submitted in support of his ineffective-assistance-of-trial-counsel claim on

direct appeal.

1 During the pre-Grant regime, a criminal defendant had to raise an ineffective- assistance-of-trial-counsel claim as soon as his ineffective counsel no longer represented him. See Hubbard,

n.6. If trial counsel served as appellate counsel, a criminal defendant could wait until a state postconviction proceeding to raise an ineffective-assistance-of-trial-counsel claim. One year after Gonzalez’s direct appeal, Pennsylvania adopted a new rule. See Grant,

. 3 Gonzalez supported his amended § 2254 petition with five affidavits obtained in

2016 from character witnesses. Four of the witnesses “provided earlier affidavits” for

Gonzalez’s direct appeal, but the earlier affidavits “did not state that the[ ] witnesses

knew Mr. Gonzalez’s reputation in the community for being peaceful, law-abiding, or

honest.” Appellant Br. at 16 n.4.

The District Court denied Gonzalez’s § 2254 petition without considering whether

the exception to procedural default established in Martinez v. Ryan applied.

(2012). The Magistrate Judge’s Report and Recommendation did not consider the 2016

affidavits “because they were not presented to and considered by the state court during

the review of [Gonzalez’s ineffective-assistance-of-trial-counsel] claim.” A28 n.15.

Finally, the District Court issued a certificate of appealability for Gonzalez’s ineffective-

assistance-of-trial-counsel claim. Gonzalez timely appealed.

II 2

Gonzalez concedes that he procedurally defaulted his ineffective-assistance-of-

trial-counsel claim. Appellant’s Br. 25–30. Ordinarily, attorney error committed by

defense counsel during state postconviction proceedings is not “cause to excuse a

procedural default.” Davila,

. This general rule is subject to a narrow

equitable exception. See Martinez,

. Gonzalez’s appeal ultimately turns on

2 The District Court had subject-matter jurisdiction under

, 2254. We have appellate jurisdiction under

, 2253. When the District Court decides a habeas petition under § 2254 based on the state-court record, we review the District Court’s decision de novo. Howell v. Superintendent Rockview SCI,

(3d Cir. 2019). 4 one issue: whether the narrow equitable exception for procedurally defaulted claims

established by Martinez—and expanded by Trevino v. Thaler,

(2013)—

applies to his ineffective-assistance-of-trial-counsel claim.

The Martinez exception has four prongs. The fourth prong—which serves as a

threshold issue in Gonzalez’s case—asks whether state law precluded or effectively

prohibited a criminal defendant from raising an ineffective-assistance-of-trial-counsel

claim on direct review. See Davila,

. The fourth prong covers two

scenarios. First, when state law or procedures require ineffective-assistance-of-trial-

counsel claims to be raised in an initial-review collateral proceeding. Martinez,

. Second, when the state procedural framework’s design or operation “makes it

highly unlikely” that a typical defendant “will have a meaningful opportunity to raise” an

ineffective-assistance-of-trial-counsel claim on direct appeal. Trevino,

.

Gonzalez’s case does not present either scenario.

First, Pennsylvania’s pre-Grant regime did not require Gonzalez to raise an

ineffective-assistance-of-trial-counsel claim in a postconviction proceeding. Martinez

applies when “state law requires prisoners to raise claims of ineffective assistance of trial

counsel ‘in an initial-review collateral proceeding,’ rather than on direct appeal.” Davila,

(emphasis added) (citation omitted). Pennsylvania’s pre-Grant regime

required the opposite in Gonzalez’s case. It required Gonzalez to raise his claim of

ineffective assistance of trial counsel “at the earliest stage of the proceedings at which the

allegedly ineffective counsel no longer represent[ed] [him],” which was the direct appeal.

See Grant,

. Thus, Pennsylvania law did not require Gonzalez to raise his

5 ineffective-assistance-of-trial-counsel claim in “the ‘initial’ review proceeding.” See

Trevino,

(quoting Martinez,

).

Second, the design or operation of Pennsylvania’s pre-Grant regime did not likely

deprive a typical defendant of a meaningful opportunity to raise an ineffective-assistance-

of-trial-counsel claim. Trevino extended the Martinez exception’s fourth prong to cases in

which a state prisoner could bring an ineffective-assistance-of-trial-counsel claim on

direct appeal, but the “state procedural framework, by reason of its design and operation,

[made] it highly unlikely in a typical case that a defendant [would] have a meaningful

opportunity to raise a claim of ineffective assistance of trial counsel.”

.

Gonzalez could—and did—raise an ineffective-assistance-of-trial-counsel claim

on direct appeal. See A1188–91. Finding that it was “virtually impossible” for Gonzalez

to raise an ineffective-assistance-of-trial-counsel claim on direct appeal would defy logic

when he, in fact, raised the claim on direct appeal. See Cox v. Horn,

(3d Cir. 2014) (quoting Trevino,

).

At least one other circuit court of appeals has found that the Martinez exception

does not apply when a defendant brought an ineffective-assistance-of-trial-counsel claim

on direct appeal. See Moore v. Mitchell,

(6th Cir. 2017) (declining to

consider Trevino because “not only does Ohio’s procedural regime make it possible for [a

criminal defendant] to present an [ineffective-assistance-of-trial-counsel] claim on direct

review, [this criminal defendant] actually brought such a claim on direct review.”

(emphasis added)).

6 Gonzalez does not show that, in a typical case, raising an ineffective-assistance-of-

trial-counsel claim on direct appeal in the pre-Grant scheme was “virtually impossible.”

See Cox,

(quoting Trevino,

). He points out that the

Pennsylvania Supreme Court acknowledged the difficulties imposed on appellate counsel

by requiring them to raise ineffective assistance of trial counsel claims on direct appeal.

But a difficult process is not a “virtually impossible” one.

And Trevino’s reasoning does not apply to Pennsylvania’s pre-Grant regime. In

Trevino, the Supreme Court analyzed several factors to find that Texas’s scheme for

ineffective-assistance-of-trial-counsel claims on direct appeal deprived a criminal

defendant of a meaningful opportunity to bring such claims. The factors included:

procedural rules for developing a record of trial counsel’s ineffectiveness; the state

appellate court’s preference for ineffective-assistance-of-trial-counsel claims to be raised

in collateral proceedings; the practice of the state’s defense counsel; and procedures for

raising an ineffective-assistance-of-trial-counsel claim on direct appeal. Trevino, 569

U.S. at 424–27. Gonzalez does not show that these factors were present in Pennsylvania’s

pre-Grant regime—much less that it is “highly unlikely” in a “typical case” that a

defendant’s ineffective-assistance-of-trial-counsel claim would receive meaningful

review. 3

3 For example, a state procedural framework may preclude meaningful review if, because of time constraints, appellate counsel cannot gather affidavits to support an ineffective- assistance-of-trial-counsel claim. But, here, Gonzalez’s appellate counsel obtained at least twelve character-witness affidavits. He just failed to draft them in a way that would make them admissible. 7 Ultimately, Gonzalez does not argue that he was precluded from raising an

ineffective-assistance-of-trial-counsel claim. Rather, Gonzalez seems intent to “turn

Martinez into a route to circumvent [Cullen v. Pinholster,

(2011)]”—which

limits § 2254 review to the state-court record—and to receive permission “to obtain new

facts to challenge” the state court’s “rejection of his [ineffective-assistance-of-trial-

counsel] claim.” See Moore v. Mitchell,

(6th Cir. 2013). In particular,

he wants to introduce new character evidence—i.e., the 2016 affidavits.

Under Pennsylvania’s pre-Grant regime, Gonzalez raised an ineffective-

assistance-of-trial-counsel claim on direct appeal. The claim failed, in part, because his

appellate counsel inartfully drafted the character witness affidavits. The poorly drafted

witness affidavits—and not Pennsylvania’s procedural scheme—foreclosed Gonzalez’s

ineffective-assistance-of-trial-counsel claim on direct appeal. Because state law did not

“explicitly or effectively foreclose[ ] review of the claim on direct appeal,” the Martinez

exception for procedurally defaulted claims does not apply. See Davila,

.

* * *

The District Court properly denied Gonzalez’s § 2254 habeas petition. We will

affirm the District Court’s order.

And regardless of the poor drafting, Gonzalez’s appellate counsel knew to bring the ineffective-assistance-of-trial-counsel claim on direct appeal. Cf. Trevino, 569 U.S. at 426–27 (discussing the defense bar’s practices under Texas’s scheme). This shows that, at the least, Gonzalez’s appellate counsel did not believe that raising the ineffective- assistance-of-trial-counsel claim on direct appeal under the pre-Grant regime was “virtually impossible.” See Cox,

(quoting Trevino,

). 8