Ruiz v. Baker et al

Filing 48

ORDER that a certificate of appealability is DENIED. Signed by Judge Robert C. Jones on 01/24/2017. (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 a

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certificate of appealability. Petitioner sought relief from judgment to file an amended petition

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with an additional ground for relief, i.e., ineffective assistance of post-conviction counsel. The

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Court denied the motion, and Petitioner appealed.

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The Court of Appeals has remanded for the limited purpose of determining whether a

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certificate of appealability should issue. The Court finds that a certificate of appealability should

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not issue because Petitioner has not made a substantial showing of the denial of any

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constitutional right. See 28 U.S.C. § 2253(c)(2). Specifically, habeas corpus relief is not

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available under § 2254 based on ineffective assistance of post-conviction counsel. Martinez v.

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Ryan, 132 S. Ct. 1309, 1320 (2012) (quoting 28 U.S.C. § 2254(i)); see also Pennsylvania v.

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Finley, 481 U.S. 551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993).

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Petitioner does not seek merely to invoke ineffective assistance of post-conviction counsel to

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excuse a procedural default of some other claim; he seeks to bring a freestanding claim of

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ineffective assistance of post-conviction counsel as a basis for habeas corpus relief.
CONCLUSION

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IT IS HEREBY ORDERED that a certificate of appealability is DENIED.

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IT IS SO ORDERED.

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Dated this 10th day ofof January, 2017.
24th day January, 2017.

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_____________________________________
ROBERT C. JONES
United States District Judge

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