Husband v. Ryan et al

Filing 95

ORDER ADOPTING REPORT AND RECOMMENDATION: the Report and Recommendation of the Magistrate Judge 90 is accepted; Petitioner's habeas petition shall be amended, as requested by Petitioner's counsel ( 89 at 5), to include IAAC and ineffect ive assistance of PCR counsel claims; Martinez v. Ryan, 132 S. Ct. 1309 (2012), is applicable to excuse Petitioner's procedural defaults of his IAAC claim and his irreconcilable conflict claim in Grounds One and Six of his Amended Petition Under 28 U.S.C. § 2254 15 ; setting a hearing on 11/22/16 at 1:30 p.m., for four hours to allow Petitioner the opportunity to establish cause and prejudice for the procedural defaults. Signed by Judge Douglas L Rayes on 9/30/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sean Patrick Husband,
Petitioner,

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ORDER

v.

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No. CV-13-01320-PHX-DLR

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court is the Report and Recommendation (“R&R”) of
Magistrate Judge Deborah M. Fine (Doc. 90), Respondent’s Objections to Magistrates
Report and Recommendation (Doc. 93) and Petitioner’s Response to State’s Objections
(Doc. 94.).
The R&R recommends that the Court order that Petitioner’s habeas petition be
amended to included Ineffective Assistance of Appellate Counsel (“IAAC”) and
ineffective assistance of PCR counsel claims and that the Court find that Martinez v.
Ryan, 132 S. Ct. 1309 (2012) is applicable to excuse Petitioner’s procedural defaults of
his IAAC claim and his irreconcilable conflict claim in Grounds One and Six of his
Amended Petition. The R&R recommends that the Court conduct a hearing to allow
Petitioner to establish cause and prejudice for the procedural defaults. The Court agrees
with Magistrate Judge that after Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013) the
Martinez standard for “cause” applies where the counsel for the post-conviction state
proceeding was unable to raise the IAAC claim in the PCR because appellate and PCR

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counsel were one and the same. The Court further agrees with the Magistrate Judge that

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in Arizona an indigent defendant has no right to court appointed counsel for the second

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PCR and therefore Petitioner had no realistic opportunity to raise the IAAC in state court

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when appellate counsel and PCR counsel were one in the same. The court agrees with

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the Magistrate Judge that Petitioner’s failure to present the second IAAC claim in state

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court is not a fatal procedural default. Further, the Court agrees that Petitioner should be

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afforded a hearing to establish cause and prejudice.

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The Magistrate Judge advised the parties that they had fourteen days to file

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objections to the R&R. (R&R at 15 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72)).

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Respondent filed its objections on August 3, 2016 (Doc. 93) and Petitioner filed his

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Response to State’s Objections to Magistrate’s Report and Recommendation on August

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17, 2016. (Doc. 94.)

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The Court has considered the objections and reviewed the Report and

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Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that

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the court must make a de novo determination of those portions of the Report and

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Recommendation to which specific objections are made). The Court agrees with the

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Magistrate Judge’s determinations, accepts the recommended decision within the

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meaning of Rule 72(b), Fed. R. Civ. P., and overrules Respondent’s objections. See 28

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U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 90) is accepted.

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IT IS FURTHER ORDERED that Petitioner’s habeas petition be amended, as

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requested by Petitioner’s counsel (Doc. 89 at 5), to include IAAC and ineffective

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assistance of PCR counsel claims.

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IT IS FURTHER ORDERED that Martinez v. Ryan, 132 S. Ct. 1309 (2012), is

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applicable to excuse Petitioner’s procedural defaults of his IAAC claim and his

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irreconcilable conflict claim in Grounds One and Six of his Amended Petition Under 28

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U.S.C. § 2254 (Doc. 15).

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IT IS FURTHER ORDERED setting a hearing on November 22, 2016 at 1:30

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p.m., for four hours to allow Petitioner the opportunity to establish cause and prejudice

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for the procedural defaults.

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Dated this 30th day of September, 2016.

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Douglas L. Rayes
United States District Judge

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