Ruiz v. Baker et al

Filing 44

ORDER - DENIED ECF. No. 40 Motion for Reconsideration. Signed by Judge Robert C. Jones on 08/23/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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_____________________________________
CARLOS RUIZ,

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Petitioner,
vs.
RENEE BAKER et al.,
Respondents.

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3:11-cv-00844-RCJ-WGC
ORDER

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Petitioner Carlos Ruiz, a prisoner in the custody of the Nevada Department of

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Corrections pursuant to convictions in the Second Judicial District Court of the State of Nevada,

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petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court denied

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the Petition and a motion to reconsider. Both this Court and the Court of Appeals denied

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Petitioner a certificate of appealability. Petitioner has asked the Court to reconsider again.

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Petitioner seeks relief from judgment so that he can file an amended petition with an

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additional ground for relief, i.e., ineffective assistance of post-conviction counsel for failing to

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bring certain claims of ineffective assistance of trial counsel. Even assuming for the sake of

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argument that Rule 60(b)(6) can be invoked under the present circumstances, such amendment

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would be futile here, because there is no federal constitutional right to the effective assistance of

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counsel in state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 554 (1987);

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Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). The Supreme Court has established an

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equitable exception to the procedural default doctrine based on ineffective assistance of post-

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conviction counsel, see Martinez v. Ryan, 132 S. Ct. 1309, 1317–19 (2012), but the Court’s

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ruling in Finley that there is no freestanding constitutional right to effective assistance of counsel

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in post-conviction proceedings remains the law. The Martinez Court itself pointed out that “the

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ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction

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proceedings shall not be a ground for relief [under § 2254].” Id. at 1320 (quoting 28 U.S.C.

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§ 2254(i)). That is, even if there were a constitutional right to effective representation in post-

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conviction proceedings, such a right would not be cognizable under § 2254.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 40) is DENIED.

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IT IS SO ORDERED.

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23rd day of August, 2016.
Dated this 17th day of August, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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