Kayer v. Ryan

Filing 85

ORDER denying 84 Motion for Reconsideration. Signed by Judge David G Campbell on 8/2/2016.(DGC, nvo)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 George Russell Kayer, No. CV-07-2120-PHX-DGC Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 DEATH PENALTY CASE Respondents. 14 15 16 Before the Court is Kayer’s motion for reconsideration. (Doc. 84.) Kayer asks the 17 Court to reconsider its order denying the claims raised in his supplemental Martinez brief. 18 (Doc. 81.) For the reasons set forth below, the motion is denied. 19 DISCUSSION 20 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 21 showing of manifest error or a showing of new facts or legal authority that could not have 22 been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). Kayer 23 asserts that the Court applied an incorrect standard in evaluating his arguments under 24 Martinez v. Ryan, 132 S. Ct. 1309 (2012). 25 In Martinez, the Supreme Court held that “when a State requires a prisoner to raise 26 an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may 27 establish cause for a default of an ineffective-assistance claim in two circumstances.” 28 132 S. Ct. at 1318. As relevant here, one of those circumstances “is where appointed 1 counsel in the initial-review collateral proceeding, where the claim should have been 2 raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 3 (1984).” Id. The Court added that “[t]o overcome the default, a prisoner must also 4 demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a 5 substantial one, which is to say that the prisoner must demonstrate that the claim has 6 some merit.” Id. 7 In addressing Kayer’s defaulted claims of ineffective assistance of trial counsel, 8 this Court reviewed Ninth Circuit cases analyzing Martinez, including Clabourne v. 9 Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. 10 Ryan, 813 F.3d 798, 818 (9th Cir. 2015) (en banc). (Doc. 81 at 4–5.) In Clabourne the 11 Ninth Circuit held that to demonstrate cause under Martinez a petitioner must establish 12 that post-conviction counsel was ineffective according to the standards of Strickland v. 13 Washington, 466 U.S. 668 (1984). Accordingly, a petitioner must establish that counsel’s 14 performance was deficient and that “there was a reasonable probability that, absent the 15 deficient performance, the result of the post-conviction proceedings would have been 16 different.” Clabourne, 745 F.3d at 377; see Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th 17 Cir. 2015). To establish “prejudice,” the petitioner must show that the “underlying 18 ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the 19 prisoner must demonstrate that the claim has some merit.” Id. Citing Clabourne, this 20 Court found that Kayer’s default of the ineffective assistance claims was not excused 21 because post-conviction counsel did not perform at a constitutionally ineffective level. 22 (Doc. 81 at 15–17.) 23 In his motion for reconsideration, Kayer criticizes the Clabourne framework, 24 which he contends is inconsistent with Martinez and the en banc opinion in Dickens v. 25 Ryan, 740 F.3d 1302 (9th Cir. 2014). (Doc. 84 at 4–5.) Kayer argues that Dickens 26 “requires only a showing that the underlying trial-counsel ineffective assistance of 27 counsel claim is substantial, and not a showing that the outcome of the post-conviction 28 proceeding would have been different.” (Doc. 84 at 5.) -2- 1 The Ninth Circuit recently rejected this argument. In Runningeagle v. Ryan, No. 2 07-99026, 2016 WL 3213095, at *10 n.13 (9th Cir. June 10, 2016), the court “decline[d] 3 to revisit the Clabourne/Pizzuto standard.” 4 And even if nothing more than a “substantial” claim was required, it has not been 5 shown here. The Court’s previous decision correctly identified the test for a “substantial” 6 claim under Martinez. (Doc. 81 at 5 (“a claim is substantial if it meets the standard for 7 issuing a certificate of appealability).) The Court then specifically found that none of 8 Kayer’s defaulted ineffective assistance of counsel claims was “substantial” under this 9 test. (Doc. 81 at 9, 12, 13, 15, 17-18.) 10 11 12 IT IS HEREBY ORDERED denying Kayer’s motion to alter or amend judgment. (Doc. 84.) Dated this 2nd day of August, 2016. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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