Roland SPEIGHT, Petitioner-Appellee, v. Bernard WARNER, Respondent-Appellant, 706 F. App'x 360

MEMORANDUM Respondent-Appellant Bernard Warner (the State of Washington) appeals the district court’s order granting Petitioner-Ap-pellee Roland Speight’s 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2258, and we reverse. In federal district court, Speight asserted he received ineffective assistance of counsel on direct appeal because his appellate counsel failed to raise the argument that the trial court violated his Sixth Amendment right to a public trial. Because this claim was not raised in his personal restraint petition, it was procedurally defaulted.

Speight argued that under Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and this court’s decision in Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), ineffective assistance of his state postconviction counsel constituted cause for the procedural default of his ineffective-assistance-of-appellate-counsel claim. The district court agreed, granted Speight’s habeas petition, and stayed the writ pending the State’s appeal to this court.

During the pendency of this appeal, the Supreme Court held that ineffective assistance of postconviction counsel cannot provide cause to excuse the procedural default of an ineffective-assistanee-of-appellate-counsel claim. See Davila v. Davis, — U.S. —, 137 S.Ct. 2058, 2065, 198 L.Ed.2d 603 (2017). As Speight acknowledged in supplemental briefing, Davila squarely foreclosed the argument on which the district court relied to grant his habeas petition. To excuse his procedural default absent application of the Martinez exception, Speight was required to show cause and prejudice under Coleman v.

Thompson, 501 U.S. 722, 750, 111 S.Ct 2546, 115 L.Ed.2d 640 (1991). Because he has not done so, we must REVERSE the district court order granting Speight’s habeas petition. REVERSED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.