Michael Ray Hogan v. Jeremy Bean

── Michael Ray Hogan v. Jeremy Bean ── Court: Court of Appeals for the Ninth Circuit Date: April 30, 2026 Category: General FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL RAY HOGAN, No.18-99004 Petitioner-Appellant, D.C. No. 2:97-cv-00927- v. JCM-PAL JEREMY BEAN; ATTORNEY GENERAL FOR THE STATE OF ORDER NEVADA, Respondents-Appellees. Filed April 30, 2026 Before: Marsha S. Berzon, Jay S. Bybee, and Consuelo M. Callahan, Circuit Judges. Order; Statement by Judges Berzon and Bybee; Dissent by Judge Bress 2 HOGAN V. BEAN SUMMARY* Habeas Corpus / Death Penalty The panel denied a petition for panel rehearing and rehearing en banc in a case in which the panel affirmed in part and reversed in part the district court’s denial of death row inmate Michael Hogan’s petition for a writ of habeas corpus. In a statement respecting the denial of rehearing en banc, Judges Berzon and Bybee wrote to make two main points. First, the panel majority correctly applied the narrow exception in Martinez v. Ryan, 566 U.S. 1 (2012)—that attorney error in the “initial-review collateral proceeding” can establish cause for excusing a procedural default—to an exceedingly unusual record in which the failure of Hogan’s first state postconviction counsel to raise the relevant ineffective assistance of trial counsel claims precluded future counsel from properly raising them in any future petition. Second, the dissenting judges have overstated the consequences of the decision in this pre-AEDPA case. Judge Bress, joined by Judges Callahan, Bennett, R. Nelson, Collins, Lee, Bumatay, VanDyke and Tung, dissented from the denial of hearing en banc. Judge Bress wrote that the panel’s divided decision—that a federal habeas petitioner could invoke Martinez to revive more than ten defaulted claims of ineffective assistance of trial counsel that he failed to raise until his third and fourth state court postconviction relief petitions filed seventeen and twenty- * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  HOGAN V. BEAN 3 one years after his conviction became final—improperly expands a limited equitable exception to procedural default, contravening Supreme Court precedent and requiring district courts to engage in complex proceedings over stale, defaulted habeas claims. Judge Bress wrote that this uniquely problematic decision will impose significant systemic costs on the federal courts at a great affront to the principles of federalism that the doctrine of procedural default is meant to respect. ORDER Judge Berzon and Judge Bybee voted to deny the petition for rehearing and recommend denying the petition for rehearing en banc. Judge Callahan voted to grant the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The matter failed to receive a majority of votes of non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for panel rehearing and rehearing en banc, Dkt. 99, is DENIED. BERZON and BYBEE, Senior Circuit Judges, statement respecting the denial of rehearing en banc: With great respect to our dissenting colleagues, rehearing en banc was not warranted in this case. We write 4 HOGAN V. BEAN to make two points. First, the panel majority correctly applied Martinez’s narrow exception to an exceedingly unusual record. Second, our dissenting colleagues have overstated the consequences of our decision in this pre- AEDPA case. Our dissenting colleagues argue tha