United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2055
                        ___________________________

                                 Carman L. Deck

                                       Petitioner - Appellee

                                           v.

                        Richard Jennings; Eric S. Schmitt

                                    Respondents - Appellants

                              ------------------------------

                 Linda Long Davis; Karen Long; Erica Adkins

                                 Amici on Behalf of Appellants
                                  ____________

                   Appeal from United States District Court
                 for the Eastern District of Missouri - St. Louis
                                 ____________

                         Submitted: February 11, 2020
                             Filed: October 19, 2020
                                ____________

Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.
                              ____________

STRAS, Circuit Judge.
       After Carman Deck killed an elderly couple in their home, a Missouri jury
convicted him of several offenses, including two counts of first-degree murder. He
received the death penalty on both counts, twice successfully appealed, and 10 years
after he was first convicted, received the same sentence for a third time. He now
claims in a petition for a writ of habeas corpus that counsel at his third penalty-phase
trial was ineffective for failing to argue that the passage of time had undermined his
mitigation case. Although the district court granted relief, we reverse because Deck
has no excuse for his failure to raise this claim in state court.

                                           I.

      During a robbery in the summer of 1996, Deck killed James and Zelma Long.
Deck waited until after dark, knocked on their door, and asked for directions. After
the Longs offered to help and invited him inside, Deck pulled out a .22-caliber pistol
and ordered the couple to lie face down on their bed. He told Mrs. Long to retrieve
money and valuables from another room. Then, for about 10 minutes, Deck
considered his options. Ultimately, he put the gun to Mr. Long’s head and fired
twice. Mrs. Long suffered the same fate. Neither survived.

       A Missouri jury found Deck guilty of two counts of first-degree murder,
among other crimes. He received two death sentences, one for each murder, and the
Supreme Court of Missouri affirmed. See State v. Deck, 

(Mo. banc
1999). Deck received a new penalty-phase trial, however, after he filed a
postconviction petition claiming that counsel had been ineffective by offering
“faulty instructions” on mitigation. Deck v. State, 

, 429 (Mo. banc
2002).

       The second penalty-phase trial started just over a year later, and Deck once
again received two death sentences. See State v. Deck, 

(Mo. banc
2004). This time, the Supreme Court of the United States reversed on the ground
that the jury should not have seen Deck in shackles. See Deck v. Missouri, 

, 632–35 (2005).
                                         -2-
        Following a series of continuances, Deck’s third penalty-phase trial did not
begin until almost three-and-a-half years later—over 10 years since a Missouri jury
had found him guilty of murder. Yet again, Deck received two death sentences, one
for each murder count. The Supreme Court of Missouri affirmed the sentence, and
later, the denial of postconviction relief. See State v. Deck, 

(Mo.
banc 2010); Deck v. State, 

(Mo. banc 2012).

       Not long after, Deck filed a petition for a writ of habeas corpus in federal
district court. See 28 U.S.C. § 2254. Of the 32 claims in the petition, the court
granted relief on only two, each related to the lengthy delay between Deck’s
conviction and the third penalty-phase trial. 1 The first was that the delay violated
due process and amounted to cruel and unusual punishment. See U.S. Const.
amends. VIII, XIV. The other was that trial counsel had been ineffective for failing
to raise the argument. See Strickland v. Washington, 

, 694 (1984). The
only remedy for these constitutional violations, at least in the court’s view, was to
“vacate[]” the “death penalty” and impose a sentence of “life in prison without the
possibility of parole.”

                                          II.

      Before a federal court can consider a claim that a state prisoner “is in custody
in violation of the Constitution,” all available state-court remedies must be
exhausted. 28 U.S.C. § 2254(a), (b)(1). To avoid “procedural default,” in other


      1
       Deck appears to seek reconsideration of our decision to deny a certificate of
appealability on two other claims, labeled as 19 and 20 in his habeas petition. After
carefully reviewing the arguments in his brief, we decline to expand the certificate
of appealability or otherwise grant relief on these claims. See Jennings v. Stephens,

, 282–83 (2015) (explaining that “a certificate of appealability” is not
required when the petitioner seeks to “defen[d] [the] judgment on alternative
grounds”); see also Dansby v. Hobbs, 

, 825 (8th Cir. 2014) (stating that
“we reexamine the action of a prior panel” on an application for a certificate of
appealability “with caution”).
                                         -3-
words, a “petitioner must fairly present” the claim in state court before seeking
habeas relief in federal court. Morris v. Norris, 

, 270 (8th Cir. 1996).

       Here, although Deck advanced a number of arguments in state postconviction
proceedings, the two constitutional claims based on the 10-year delay were not
among them. The upshot is that, unless Deck can establish “cause for the default
and actual prejudice,” we cannot consider either one. Coleman v. Thompson, 

, 750 (1991).2 Applying de-novo review, we agree with Missouri that he
has not done so. See Murphy v. King, 

, 848 (8th Cir. 2011) (applying
de-novo review); Becht v. United States, 

, 545 (8th Cir. 2005) (requiring
the petitioner to establish “cause” and “prejudice”).

                                         A.

      The district court, however, thought Deck had established both. The “cause”
was state postconviction counsel’s failure to raise a substantial claim that trial
counsel provided ineffective assistance by not objecting to the long delay, which
“prejudice[d]” Deck because there was a reasonable probability that the argument
would have succeeded had postconviction counsel raised it. 

.

                                         1.

      Ineffective assistance of state postconviction counsel does not usually provide
cause for a procedural default

except for one “narrow exception,”
Martinez v. Ryan, 

, 9 (2012). In Martinez, the Supreme Court held that
postconviction counsel’s ineffectiveness can provide “cause” for excusing a
defaulted ineffective-assistance-of-trial-counsel claim. See

see also

      2
       Deck does not argue that we should excuse the default because a “failure to
consider his claims [would] result in a fundamental miscarriage of justice.”

; see also Sweet v. Delo, 

, 1151–52 (8th Cir.
1997).
                                      -4-
Trevino v. Thaler, 

, 429 (2013) (explaining that the claim must also be
“substantial,” and that the state judicial system must not have provided a
“meaningful opportunity to raise” it on direct appeal (quotation marks omitted)).

       The district court held that Deck’s case fell squarely under the Martinez
exception. In its view, the defaulted claim was substantial, because counsel at
Deck’s third penalty-phase trial had a difficult time mounting a mitigation case
because of the passage of time. Specifically, some of Deck’s witnesses from the
first two penalty-phase trials were unable or unwilling to provide in-person
testimony the third time around. In light of this difficulty, the court believed it was
obvious that counsel should have raised Eighth and Fourteenth Amendment
objections before the trial began. It was so obvious, in fact, that postconviction
counsel was ineffective for failing to recognize it later.

       The district court then took the cause analysis one step further. Relying on
Edwards v. Carpenter, 

(2000), it concluded that the newly excused
ineffective-assistance-of-trial-counsel claim provided cause for the default of the
underlying Eighth and Fourteenth Amendment claims. See

(leaving open
the possibility that a petitioner who can overcome the default of an ineffective-
assistance claim can use it to show cause for the default of another claim). This
Martinez-plus-Edwards approach allowed the court to grant habeas relief for both
the ineffective-assistance-of-trial-counsel claim and the underlying constitutional
claims, even though Deck never raised them in state court.

                                          2.

      Every step in this analysis, however, still depends on getting through the
Martinez gateway first. This means that the key question is whether postconviction
counsel was ineffective. If not, there is no excuse for the failure to raise trial
counsel’s ineffectiveness during state postconviction proceedings. See 

. And if trial counsel’s ineffectiveness is defaulted without excuse,


                                         -5-
then so are Deck’s underlying Eighth and Fourteenth Amendment claims. See

–53. Without Martinez, Deck never gets to Edwards.

       Focusing on the narrow question of postconviction counsel’s performance, as
Martinez instructs us to do, we must determine whether the ineffective-assistance-
of-trial-counsel claim was “substantial enough” that the failure to raise it on
postconviction review was itself ineffective.       

.
Notwithstanding the district court’s contrary conclusion, we do not believe that
Deck’s claim of ineffective assistance of trial counsel is “substantial enough” to
excuse his procedural default.

       As we have explained, failing to make an argument that would “require the
resolution of unsettled legal questions” is generally not “outside the wide range of
professionally competent assistance.”

(quotation marks omitted); see
Parker v. Bowersox, 

, 929 (8th Cir. 1999) (explaining that it is not
objectively unreasonable for counsel to “fail[] to anticipate a change in the law”).
When postconviction counsel filed Deck’s petition in 2010, the law was far from
settled that a 10-year delay between conviction and sentencing would give rise to a
constitutional claim, much less that trial counsel was ineffective for failing to raise
the argument two years earlier. 3 See New v. United States, 

, 953 (8th
Cir. 2011) (concluding that the absence of “controlling authority” supporting a legal
argument doomed an ineffective-assistance claim).

      It is no answer to rely, as the district court did, on Betterman v. Montana, 

(2016), which was not decided until six years after Deck filed his

      3
        We further note that it is doubtful that Deck has made a “substantial” claim
that he was prejudiced, even if trial counsel’s performance had been objectively
unreasonable. He suggests that the passage of time deprived him of mitigating
evidence, including from certain witnesses who were unavailable to testify at his
third trial. Even so, we doubt that there is “a reasonable probability that” the trial
court would have done anything different had it faced a timely objection from Deck’s
trial counsel. 

. After all, much of the missing testimony
was cumulative to other evidence or did not add much to Deck’s mitigation case.
                                         -6-
postconviction petition. We evaluate ineffective assistance of counsel using a freeze
frame—when the alleged poor performance occurred, not sometime later when the
law finally gets settled. See 

(holding that we must
“evaluate the conduct from counsel’s perspective at the time” (emphasis added));
Toledo v. United States, 

, 681 (8th Cir. 2009) (“We do not evaluate
counsel’s performance using the clarity of hindsight, but in light of the facts and
circumstances at the time of trial.” (internal quotation marks omitted)). Moreover,
Betterman itself hardly settles the question. It says only that the Due Process Clause
might provide for “tailored relief” from “exorbitant” sentencing delays, not that it
necessarily 

, 1617.

       Examining the state of the law in 2010, Deck cannot identify any “controlling
authority” from either the Supreme Court of the United States or the Supreme Court
of Missouri that had recognized a Due Process claim under these or similar
circumstances. 

; see also Pollard v. United States, 

, 361–62 (1957) (assuming without deciding that the Speedy Trial Clause applied
to sentencing delays and concluding that a petitioner was not entitled to relief); State
v. Haslip, 

, 228–29 (Mo. Ct. App. 1979) (explaining that periods of
up to 29 months between conviction and sentencing were not “violative” of a
defendant’s Sixth Amendment rights). The law, in other words, was at best
“unsettled” at the time. 

.

       It is true that other courts had suggested that a constitutional claim like this
one could work. See, e.g., United States v. Yelverton, 

, 536 & n.5 (D.C.
Cir. 1999) (collecting cases). But these cases were not controlling; did not reflect a
single unified framework; and largely relied on the Sixth Amendment’s Speedy Trial
Clause, not the Fourteenth Amendment’s Due Process Clause. Compare 

(making clear that “[t]he Sixth Amendment speedy[-]trial right . . .
does not extend beyond conviction”), with United States v. Abou-Kassem, 

, 167 (5th Cir. 1996) (applying the Barker v. Wingo, 

(1972), factors
to a speedy-sentencing claim), and United States v. Sanders, 

, 580 (6th
Cir. 2006) (adopting a due-process framework). “Given th[e] split of authority”
                                         -7-
elsewhere, and the lack of controlling authority here, we cannot say that
postconviction counsel’s “performance fell [outside] ‘the wide range of
professionally competent assistance.’” Fields v. United States, 

,
1027–28 (8th Cir. 2000) (quoting 

).

       At the time of Deck’s postconviction proceedings in 2010, there was even less
reason to believe that an Eighth Amendment claim would succeed. There is no
question, as Deck points out, that capital defendants have a constitutional right to
present mitigating evidence. See Eddings v. Oklahoma, 

, 110 (1982).
But none of the cases establishing this principle involved situations in which a long
delay was allegedly responsible for a shortage of mitigating evidence. See, e.g.,
Skipper v. South Carolina, 

, 3 (1986) (exclusion of evidence by the trial
court); 

–09 (refusal of the trial court to consider admitted
evidence); Woodson v. North Carolina, 

, 286 (1976) (opinion of
Stewart, Powell, and Stevens, JJ.) (exclusion by state statute). So postconviction
counsel was faced with the prospect of arguing that trial counsel was ineffective for
failing to raise a “novel argument.” Anderson v. United States, 

, 754
(8th Cir. 2005). However, “competent” performance does not require counsel to
“recognize and raise every conceivable constitutional claim.”

       Moreover, “[d]eclining to raise a claim . . . is not deficient performance unless
that claim was plainly stronger than those actually presented.” Davila v. Davis, 

, 2067 (2017). Postconviction counsel raised a number of other claims,
including that trial counsel should have presented more mitigating evidence at the
third trial. Although none of these claims proved successful, there was a well-
established legal basis for them, and counsel could have reasonably concluded that
an ineffective-assistance claim focused exclusively on the delay would have only
detracted from other, stronger arguments.




                                         -8-
                                     *      *       *

      In sum, postconviction counsel’s performance was reasonable. It follows that
the Martinez exception—the only conceivable basis for excusing Deck’s procedural
default—is unavailable to him.

                                            B.

       Deck nevertheless insists, in the alternative, that he is entitled to an evidentiary
hearing to establish cause for the default. We have, to be sure, remanded to allow a
district court to hold an evidentiary hearing to evaluate whether a petitioner has an
excuse under Martinez. See, e.g., Sasser v. Hobbs, 

, 851, 853–54 (8th
Cir. 2013). But we have also been clear that a remand is only available when the
ineffective-assistance-of-trial-counsel claim is “substantial or potentially
meritorious.” 

(internal quotation marks omitted). And
here, for the reasons we have already stated, Deck’s claim is not.

                                             III.

       We accordingly reverse and remand for the entry of judgment denying Deck’s
petition in full.
                      ______________________________




                                           -9-