Martinez' appellate counsel was not ineffective because he tried to raise the issue on direct appeal. After the Horn decision and before oral argument, Martinez' appellate counsel moved to file a supplemental brief, but the Kansas Supreme Court refused to consider the issue. There are two differences between the present case and Berriozabal: the timing of the motion for supplemental briefing and the arguments articulated in favor of such briefing.
Martinez' appellate due process rights were not violated because he has no constitutional right to a uniform decision from the Kansas Supreme Court (i.e., he was not entitled to the opportunity Berriozabal was given to raise the Horn issue in a supplemental brief). Although actions of state judicial officers acting in their representative capacity are regarded as actions of the State within the meaning of the Fourteenth Amendment to the United States Constitution, there is no constitutional right to consistent decisions from an appellate court.But the COA went on to hold that Mr. Martinez was entitled to a new sentence:
The doctrine of res judicata does not bar Martinez' current K.S.A. 60–1507 claim because while the Horn issue was raised on direct appeal, it was not decided on the merits. But a K.S.A. 60–1507 motion cannot serve as a vehicle to raise an issue that should have been raised on direct appeal, unless the movant demonstrates exceptional circumstances excusing earlier failure to bring the issue before the court. Supreme Court Rule 183(c)(3). Horn was clearly an applicable, intervening change in the law on attempted Jessica's Law crimes, and our Supreme Court's refusal to entertain the issue could be characterized as an unusual event. Therefore, the motion, files, and records of this case conclusively establish that Martinez is entitled to receive a nondrug severity level 1 felony sentence.As a result, the COA remanded for a new sentence.
[Update: the state did not file a PR and the mandate issued on April 3, 2014.]