Argued: February 6, 2017
Christopher Northrop, Esq., and McKenzie Smith, Stud. Atty.
(orally), Cumberland Legal Aid Clinic, Portland, for
appellant Olland Reese
T. Mills, Attorney General, and Donald W. Macomber, Asst.
Atty. Gen. (orally) Office of the Attorney General, Augusta,
for appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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
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.
FACTS AND PROCEDURE
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,
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.
By statute, subject to specified limitations,  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,
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.
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, " 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
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 ...