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Reese v. State

Supreme Court of Maine

March 7, 2017


          Argued: February 6, 2017

          Christopher Northrop, Esq., and McKenzie Smith, Stud. Atty. (orally), Cumberland Legal Aid Clinic, Portland, for appellant Olland Reese

          Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally) Office of the Attorney General, Augusta, for appellee State of Maine


          MEAD, J.

         [¶1] Olland Reese appeals from a judgment of the trial court (Sagadahoc County, Warren, J.) dismissing Grounds 1-5 of his second petition for post-conviction review prior to the evidentiary hearing on the petition. Those grounds asserted that Reese's counsel in his first petition for post-conviction review, which was denied in 2009, was ineffective. The court concluded that Maine law does not permit a second petition to challenge the effectiveness of counsel who represented a petitioner in a prior petition, and that the United States Supreme Court's decision in Martinez v. Ryan, 566 U.S. 1 (2012), whatever its impact on that point of law may be, was not retroactive and therefore had no effect on Reese's first petition, which was denied more than two years before Martinez was decided.

         [¶2] Pursuant to M.R. App. P. 19, we granted a certificate of probable cause "limited to the issue" of "whether Martinez v. Ryan ... provides [Reese] with the right to challenge the effectiveness of counsel in a post-conviction review proceeding." Having considered that limited question, we affirm the judgment.[1]


         [¶3] This is the fourth time that Reese's case has been before us. In 2005, we affirmed Reese's 2003 conviction for murdering a sixteen-year-old girl. State v. Reese, 2005 ME 87, ¶ 1, 877 A.2d 1090; see State v. Reese, 2013 ME 10, ¶ 1, 60 A.3d 1277. In July 2009, we denied Reese's request for a certificate of probable cause after the trial court denied his first petition for post-conviction review. See Reese v. State, No. CR-06-125, 2009 Me. Super. LEXIS 117 (Feb. 27, 2009). In 2013, we affirmed the trial court's denial of Reese's motion for a new trial based on DNA evidence. Reese, 2013 ME 10, ¶ 32, 60 A.3d 1277; see State v. Reese, No. CR-02-73, 2012 Me. Super. LEXIS 55 (March 14, 2012).

         [¶4] The case at bar began in January 2013 when Reese filed a second petition for post-conviction review, which, as later amended, asserted sixteen grounds, some related to the first petition and others to the motion for a new trial. Grounds 1-5 asserted that the attorney who represented Reese in his first petition was ineffective in several respects. The court dismissed those grounds after concluding that Martinez was not retroactive even if, arguendo, it announced a rule favorable to Reese. The court held an evidentiary hearing concerning four grounds that remained following the dismissal of Grounds 1-5 and other prehearing proceedings that are not at issue here. It denied the petition in a detailed order dated December 10, 2015. We granted Reese's request for a certificate of probable cause, subject to the single-issue limitation stated in the certificate.


         [¶5] By statute, subject to specified limitations, [2] post-conviction review is available for "review of a criminal judgment of this State or of a post-sentencing proceeding following the criminal judgment." 15 M.R.S. § 2124 (2016). Although an assertion of ineffective assistance of trial counsel is cognizable in a first petition for post-conviction review as a challenge to the underlying criminal conviction, [3] we have long held that a claim of ineffective assistance of post-conviction counsel is not cognizable in a subsequent petition because "post-conviction review is not included within the definition of a post-sentencing proceeding." McEachern v. State, 456 A.2d 886, 890 (Me. 1983); see 15 M.R.S. § 2121(2) (2016). Accordingly, the trial court properly dismissed Grounds 1-5 of Reese's petition unless Reese persuades us that Martinez announced a new rule requiring a contrary result and that the rule applies retroactively to Reese's petition. He fails in that task because the Supreme Court declared explicitly that Martinez did not announce a new constitutional rule, but rather only narrowly qualified a doctrine of federal procedure as a matter of equity, and because the Martinez holding is not retroactive in any event.

         [¶6] A new rule of constitutional criminal procedure is retroactively applied only if it "alters the range of conduct or the class of persons that the law punishes, " or is "a watershed rule of criminal procedure." Carmichael v. State, 2007 ME 86, ¶ 18, 927 A.2d 1172 (quotation marks omitted). In Martinez, the Supreme Court noted that its decision in Coleman v. Thompson, 501 U.S. 722 (1991), "left open ... a question of constitutional law: whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial." Martinez, 566 U.S. at 8. The Court said that when an appellate system-such as Maine's- "makes the initial-review collateral proceeding a prisoner's one and only appeal as to an ineffective-assistance claim, "[4] id. (quotation marks omitted), that circumstance "may justify an exception to the constitutional rule that there is no right to counsel in collateral proceedings, " id. at 9.[5]

         [¶7] However, contrary to Reese's assertion that "[i]n light of Martinez,McEachern must be reinterpreted to comport with due process and allow for the state review of ineffective post-conviction ...

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