Reported / Citable
Background
Michael Ray Hogan, a Nevada death-row inmate, has been litigating his federal habeas corpus petition for decades. In 2025, a Ninth Circuit panel issued a divided decision (reported at 140 F.4th 1001) affirming in part and reversing in part the district court’s denial of his petition. The reversal piece allowed Hogan to use the equitable exception established in Martinez v. Ryan, 566 U.S. 1 (2012), to revive more than ten claims of ineffective assistance of trial counsel that he did not raise until his third and fourth state postconviction petitions, filed seventeen and twenty-one years after his conviction became final.
The State of Nevada and several judges sought rehearing en banc. They argued that the panel had improperly extended Martinez beyond its narrow scope and that the decision would impose substantial costs on federal courts adjudicating long-defaulted ineffective-assistance claims.
The full court was advised of the en banc petition. A judge requested a vote, but the petition failed to receive a majority of nonrecused active judges. The petition was denied, accompanied by a statement respecting the denial and a forceful dissent.
The Court’s Holding
The Ninth Circuit denied panel rehearing and rehearing en banc. The panel decision in Hogan v. Bean remains binding circuit law.
Senior Judges Berzon and Bybee wrote a statement respecting the denial. They made two main points. First, the panel correctly applied Martinez’s narrow exception to an unusual record. Martinez provides that attorney error in the “initial-review collateral proceeding” (the first state postconviction proceeding in which a trial-ineffective-assistance claim could be raised) can establish cause for excusing a procedural default. The statement explained that Martinez does not require the claim to be raised in a second postconviction petition, or in any specific subsequent proceeding. The triggering question is whether the failure occurred in the initial-review collateral proceeding. Here, the first state postconviction counsel’s failure to raise the trial-ineffective-assistance claims precluded future counsel from properly raising them in subsequent petitions, because of Nevada’s strict bar on successive petitions.
Second, the statement argued that the dissenters overstate the consequences of the decision because the case is governed by pre-AEDPA standards. AEDPA imposes substantial new restrictions on federal habeas review that did not apply when Hogan’s petition was filed in 1997. The decision’s reach in modern AEDPA cases is therefore narrower than the dissenters suggest.
Judge Bress, joined by Judges Callahan, Bennett, R. Nelson, Collins, Lee, Bumatay, VanDyke, and Tung — nine judges in total — dissented from the denial of rehearing en banc. Judge Bress wrote that the panel improperly expanded Martinez’s limited equitable exception, that the decision contravenes Supreme Court precedent, and that it will require district courts to engage in complex proceedings over stale, defaulted habeas claims. He criticized the decision as a serious affront to the federalism principles that procedural default is meant to protect.
Key Takeaways
- The Ninth Circuit’s panel decision in Hogan v. Bean, 140 F.4th 1001 (9th Cir. 2025), remains binding circuit law: the Martinez v. Ryan exception can apply to long-delayed claims when the state’s rules on successive petitions trace the procedural default to errors in the initial-review collateral proceeding.
- Under the panel’s reasoning, Martinez’s focus is on what happened in the initial-review collateral proceeding, not on whether the claim was raised in a second state postconviction petition.
- The case turns importantly on its pre-AEDPA posture. The reach of the decision in modern AEDPA cases is more limited.
- Nine judges dissented from the denial of rehearing en banc, signaling that the issue may attract Supreme Court attention.
Why It Matters
While Hogan v. Bean arose under Nevada law, the case has direct implications for habeas practice in the Ninth Circuit, including in California capital cases. Martinez v. Ryan is one of the most heavily litigated procedural-default doctrines in federal habeas, and how broadly it is read substantially affects what trial-ineffective-assistance claims can be revived in federal court.
For California capital habeas counsel, the decision is significant because California, like Nevada, has restrictive rules about successive postconviction petitions. The panel decision’s focus on what happened in the initial-review collateral proceeding (rather than on a rigid requirement that the claim be raised in a second petition) preserves Martinez-based arguments in cases where the petitioner’s state postconviction counsel did not raise key trial-ineffective-assistance claims and successive petitions were procedurally barred.
The strong dissent suggests that the State of Nevada may seek Supreme Court review. If the Court takes the case, the resulting decision could substantially alter the scope of Martinez across all states, including California. Practitioners should track the case closely.