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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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George Russell Kayer,

No. CV-07-2120-PHX-DGC

Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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DEATH PENALTY CASE

Respondents.

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Before the Court is Kayer’s motion for reconsideration. (Doc. 84.) Kayer asks the

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Court to reconsider its order denying the claims raised in his supplemental Martinez brief.

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(Doc. 81.) For the reasons set forth below, the motion is denied.

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DISCUSSION

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“The Court will ordinarily deny a motion for reconsideration of an Order absent a

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showing of manifest error or a showing of new facts or legal authority that could not have

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been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). Kayer

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asserts that the Court applied an incorrect standard in evaluating his arguments under

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Martinez v. Ryan, 132 S. Ct. 1309 (2012).

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In Martinez, the Supreme Court held that “when a State requires a prisoner to raise

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an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may

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establish cause for a default of an ineffective-assistance claim in two circumstances.”

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132 S. Ct. at 1318. As relevant here, one of those circumstances “is where appointed

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counsel in the initial-review collateral proceeding, where the claim should have been

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raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668

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(1984).” Id. The Court added that “[t]o overcome the default, a prisoner must also

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demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a

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substantial one, which is to say that the prisoner must demonstrate that the claim has

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some merit.” Id.

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In addressing Kayer’s defaulted claims of ineffective assistance of trial counsel,

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this Court reviewed Ninth Circuit cases analyzing Martinez, including Clabourne v.

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Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v.

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Ryan, 813 F.3d 798, 818 (9th Cir. 2015) (en banc). (Doc. 81 at 4–5.) In Clabourne the

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Ninth Circuit held that to demonstrate cause under Martinez a petitioner must establish

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that post-conviction counsel was ineffective according to the standards of Strickland v.

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Washington, 466 U.S. 668 (1984). Accordingly, a petitioner must establish that counsel’s

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performance was deficient and that “there was a reasonable probability that, absent the

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deficient performance, the result of the post-conviction proceedings would have been

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different.” Clabourne, 745 F.3d at 377; see Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th

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Cir. 2015). To establish “prejudice,” the petitioner must show that the “underlying

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ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the

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prisoner must demonstrate that the claim has some merit.” Id. Citing Clabourne, this

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Court found that Kayer’s default of the ineffective assistance claims was not excused

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because post-conviction counsel did not perform at a constitutionally ineffective level.

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(Doc. 81 at 15–17.)

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In his motion for reconsideration, Kayer criticizes the Clabourne framework,

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which he contends is inconsistent with Martinez and the en banc opinion in Dickens v.

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Ryan, 740 F.3d 1302 (9th Cir. 2014). (Doc. 84 at 4–5.) Kayer argues that Dickens

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“requires only a showing that the underlying trial-counsel ineffective assistance of

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counsel claim is substantial, and not a showing that the outcome of the post-conviction

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proceeding would have been different.” (Doc. 84 at 5.)
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The Ninth Circuit recently rejected this argument. In Runningeagle v. Ryan, No.

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07-99026, 2016 WL 3213095, at *10 n.13 (9th Cir. June 10, 2016), the court “decline[d]

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to revisit the Clabourne/Pizzuto standard.”

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And even if nothing more than a “substantial” claim was required, it has not been

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shown here. The Court’s previous decision correctly identified the test for a “substantial”

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claim under Martinez. (Doc. 81 at 5 (“a claim is substantial if it meets the standard for

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issuing a certificate of appealability).) The Court then specifically found that none of

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Kayer’s defaulted ineffective assistance of counsel claims was “substantial” under this

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test. (Doc. 81 at 9, 12, 13, 15, 17-18.)

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IT IS HEREBY ORDERED denying Kayer’s motion to alter or amend
judgment. (Doc. 84.)
Dated this 2nd day of August, 2016.

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