Ree v. Ryan et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION 17 in full. It is further ordered that the Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and this case is dismissed with prejudice. The Clerk of the Court is directed to enter judgment accordingly and close this case. The Court concludes that a certificate of appealability shall not issue. Signed by Judge Rosemary Marquez on 6/18/15. (See attached PDF for complete information.) (KAH)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Francis Ree, No. CV-13-00746-TUC-RM Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 The Court previously issued an Order (Doc. 18) partially adopting Magistrate 16 Judge Leslie A. Bowman’s Report and Recommendation (Doc. 17). In the Order, the 17 Court requested supplemental briefing concerning the impact of Martinez v. Ryan, 132 S. 18 Ct. 1309 (2012), on the above-entitled case. After review of the supplemental briefing 19 and further review of the record, the Court finds that Martinez is inapplicable because 20 Petitioner had a constitutional right to counsel during his of-right post-conviction review 21 proceeding. In Arizona, a defendant who pleads guilty in a non-capital case waives his 22 right to a direct appeal, and Rule 32 proceedings become the sole available avenue for 23 exercising the defendant’s constitutional right to appellate review. Arizona v. Pruett, 912 24 P.2d 1357, 1359-60 (Ariz. App. 1995). Therefore, such a defendant “is constitutionally 25 entitled to the effective assistance of counsel in his first petition for post-conviction 26 relief.” Id. at 1360. 27 Because Petitioner had a constitutional right to counsel during his of-right post- 28 conviction review proceeding, Judge Bowman’s Report and Recommendation correctly 1 concluded that Petitioner needed to present the alleged ineffectiveness of post-conviction 2 counsel as an independent claim to the state courts before he could use it to establish 3 cause for a procedural default of his claim of ineffective assistance of trial counsel. See 4 Edwards v. Carpenter, 529 U.S. 446, 452 (2000). Petitioner failed to present a claim of 5 ineffective assistance of post-conviction review counsel to the state courts. The Report 6 and Recommendation correctly concluded that Petitioner has not established cause and 7 prejudice or a fundamental miscarriage of justice to excuse his procedural default. 8 Accordingly, 9 10 IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 17) in now adopted in full. 11 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. 12 1) is denied and this case is dismissed with prejudice. The Clerk of the Court is 13 directed to enter judgment accordingly and close this case. Upon review of the record in 14 light of the standards for granting a certificate of appealability, the Court concludes that a 15 certificate shall not issue because the resolution of the Petition is not debatable among 16 reasonable jurists. See 28 U.S.C. §2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85 17 (2000). 18 Dated this 18th day of June, 2015. 19 20 21 Honorable Rosemary Márquez United States District Judge 22 23 24 25 26 27 28 -2-

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