Ree v. Ryan et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
John Francis Ree,
Charles L. Ryan, et al.,
The Court previously issued an Order (Doc. 18) partially adopting Magistrate
Judge Leslie A. Bowman’s Report and Recommendation (Doc. 17). In the Order, the
Court requested supplemental briefing concerning the impact of Martinez v. Ryan, 132 S.
Ct. 1309 (2012), on the above-entitled case. After review of the supplemental briefing
and further review of the record, the Court finds that Martinez is inapplicable because
Petitioner had a constitutional right to counsel during his of-right post-conviction review
proceeding. In Arizona, a defendant who pleads guilty in a non-capital case waives his
right to a direct appeal, and Rule 32 proceedings become the sole available avenue for
exercising the defendant’s constitutional right to appellate review. Arizona v. Pruett, 912
P.2d 1357, 1359-60 (Ariz. App. 1995). Therefore, such a defendant “is constitutionally
entitled to the effective assistance of counsel in his first petition for post-conviction
relief.” Id. at 1360.
Because Petitioner had a constitutional right to counsel during his of-right post-
conviction review proceeding, Judge Bowman’s Report and Recommendation correctly
concluded that Petitioner needed to present the alleged ineffectiveness of post-conviction
counsel as an independent claim to the state courts before he could use it to establish
cause for a procedural default of his claim of ineffective assistance of trial counsel. See
Edwards v. Carpenter, 529 U.S. 446, 452 (2000). Petitioner failed to present a claim of
ineffective assistance of post-conviction review counsel to the state courts. The Report
and Recommendation correctly concluded that Petitioner has not established cause and
prejudice or a fundamental miscarriage of justice to excuse his procedural default.
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc.
17) in now adopted 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. Upon review of the record in
light of the standards for granting a certificate of appealability, the Court concludes that a
certificate shall not issue because the resolution of the Petition is not debatable among
reasonable jurists. See 28 U.S.C. §2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85
Dated this 18th day of June, 2015.
Honorable Rosemary Márquez
United States District Judge
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