Whether the Ninth Circuit Court of Appeals misapplied the standard governing the grant of a certificate of appealability for a federal habeas petition claim of ineffective assistance of counsel

QUESTION PRESENTED Petitioner Jermaine Campbell is currently serving a sentence of 20 years to life based upon a factual predicate never found beyond a reasonable doubt by the jury in his case. During jury deliberations, jurors were instructed to find that Campbell possessed only 4 grams or more of cocaine and only 4 grams or more of heroin, which amounted to Level I trafficking; yet, the sentencing court gave him a sentence for Level III trafficking, NRS § 453.3385(3), sentencing him to two consecutive sentences of 10 years to life. To impose this sentence, clearly established federal law required that the jury find beyond a reasonable doubt that Campbell possessed at least 28 grams of each substance. Because the jury instructions required a finding of at least 4 grams and the general verdict form made no mention of the quantity of drugs, trial counsel should have objected to the sentence imposed. Trial counsel’s failure to object to this obvious violation of clearly established federal law amounted to deficient performance; but for this deficient performance, Campbell would have received a sentence of 1 to 6 years under NRS § 453.3385(1). In his amended federal petition under 28 U.S.C. § 2254, Campbell raised this claim. Because this claim of ineffective assistance of counsel at sentencing was raised for the first time during the state post-conviction appellate proceedings, it was procedurally defaulted in the federal § 2254 proceedings. Campbell argued that he could overcome the procedural default of the claim under Martinez v. Ryan, 566 U.S. 1 (2012), because his initial post-conviction counsel had never even ordered the sentencing transcript, let alone raised the claim in a supplemental state petition that i the sentencing judge did not have the authority to sentence Campbell to Level III trafficking. He also argued that the claim had some merit because the underlying ineffective assistance of counsel claim is substantial in light of this Court’s decision in Blakely v. Washington, 542 U.S. 106 (2004). The federal district court failed to even address many of the arguments raised by Campbell in his reply brief, found that Campbell could not overcome the procedural default of this claim, and that a certificate of appealability wasn’t warranted. Campbell sought a certificate of appealability on this claim, which the Ninth Circuit Court of Appeals denied. He then sought reconsideration, arguing that the court of appeals had misapplied the standard for a certificate of appealability. The Ninth Circuit denied the motion to reconsider as well. The question presented is whether the Ninth Circuit Court of Appeals misapplied the standard governing the grant of a certificate of appealability for Petitioner Jermaine J. Campbell’s claim of ineffective assistance of counsel in his federal habeas petition. ii