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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Francis Ree,

No. CV-13-00746-TUC-RM
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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The Court previously issued an Order (Doc. 18) partially adopting Magistrate

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Judge Leslie A. Bowman’s Report and Recommendation (Doc. 17). In the Order, the

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Court requested supplemental briefing concerning the impact of Martinez v. Ryan, 132 S.

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Ct. 1309 (2012), on the above-entitled case. After review of the supplemental briefing

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and further review of the record, the Court finds that Martinez is inapplicable because

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Petitioner had a constitutional right to counsel during his of-right post-conviction review

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proceeding. In Arizona, a defendant who pleads guilty in a non-capital case waives his

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right to a direct appeal, and Rule 32 proceedings become the sole available avenue for

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exercising the defendant’s constitutional right to appellate review. Arizona v. Pruett, 912

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P.2d 1357, 1359-60 (Ariz. App. 1995). Therefore, such a defendant “is constitutionally

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entitled to the effective assistance of counsel in his first petition for post-conviction

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relief.” Id. at 1360.

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Because Petitioner had a constitutional right to counsel during his of-right post-

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conviction review proceeding, Judge Bowman’s Report and Recommendation correctly

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concluded that Petitioner needed to present the alleged ineffectiveness of post-conviction

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counsel as an independent claim to the state courts before he could use it to establish

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cause for a procedural default of his claim of ineffective assistance of trial counsel. See

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Edwards v. Carpenter, 529 U.S. 446, 452 (2000). Petitioner failed to present a claim of

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ineffective assistance of post-conviction review counsel to the state courts. The Report

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and Recommendation correctly concluded that Petitioner has not established cause and

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prejudice or a fundamental miscarriage of justice to excuse his procedural default.

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Accordingly,

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc.
17) in now adopted in full.

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc.

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1) is denied and this case is dismissed with prejudice. The Clerk of the Court is

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directed to enter judgment accordingly and close this case. Upon review of the record in

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light of the standards for granting a certificate of appealability, the Court concludes that a

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certificate shall not issue because the resolution of the Petition is not debatable among

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reasonable jurists. See 28 U.S.C. §2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85

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(2000).

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Dated this 18th day of June, 2015.

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Honorable Rosemary Márquez
United States District Judge

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