172055P.pdf   10/19/2020  Carman Deck  v.  Richard Jennings
   U.S. Court of Appeals Case No:  17-2055
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Stras, Author, with Smith, Chief Judge, and Colloton, Circuit 
   Judge] 
   Prisoner case - Habeas. Deck was convicted three separate times for the 
   murders of James and Zelma Long and received the death penalty in each 
   prosecution; his first two convictions were reversed and 10 years passed 
   between his first conviction and his third; in his petition for a writ of 
   habeas corpus, Deck contended that counsel at his third-penalty phase 
   trial was ineffective for failing to argue that the passage of time had 
   undermined his mitigation case, and that postconviction counsel was 
   ineffective for failing to raise the claim of ineffective assistance of 
   counsel; the district court granted habeas relief, finding postconviction 
   counsel's failure to raise the issue provided cause for excusing the 
   defaulted ineffective-assistance-of-trial-counsel claim under Martinez v. 
   Ryan, 566 U.S. 1 (2012); further, the district court concluded that under 
   Edwards v. Carpenter, 549 U.S. 446 (2000), the newly excused 
   ineffective-assistance-of-trial-counsel claim provided cause for the 
   default of the underlying 8th and 14th Amendment claims. Held: Deck did 
   not establish cause for his failure to raise the claim in state court, and 
   the grant of habeas relief is reversed; the law was unsettled at the time 
   of sentencing that a 10-year delay between conviction and sentencing would 
   give rise to a constitutional claim and was no more settled when 
   postconviction counsel filed for postconviction relief in 2010; 
   postconviction counsel could reasonably conclude that raising an unsettled 
   or novel claim would only have detracted from his other, stronger 
   arguments for postconviction relief; his performance was reasonable, and 
   the Martinez exception, the only conceivable basis for excusing Deck's 
   procedural default, was unavailable to him.