MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	40	
Docket:	   Sag-16-5	
Argued:	   February	6,	2017		
Decided:	  March	7,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
                                         	
                                   OLLAND	REESE	
                                         	
                                        v.	
                                         	
                                  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	

	        [¶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	

                                I.		FACTS	AND	PROCEDURE	

	        [¶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	



     1
    		Reese	urges	us	to	go	beyond	the	effect	of	Martinez	v.	Ryan,	566	U.S.	1	(2012),	and	find	such	a	
right	in	the	Maine	Constitution.		That	issue	is	not	encompassed	by	the	certificate	of	probable	cause	
authorizing	an	appeal	concerning	a	single	discrete	question,	and	we	do	not	address	it.	
                                                                                          3	

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.	

                                            II.		DISCUSSION	

	          [¶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	




    2
        		See	15	M.R.S.	§§	2124,	2126,	2128,	2128-B	(2016).	
    	
4	

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	


     3
      	 	 See	 15	 M.R.S.	 §§	 2122,	 2124	 (2016);	 State	 v.	 Ali,	 2011	 ME	 122,	 ¶	 20,	 32	 A.3d	 1019;	
cf.	McEachern	v.	State,	456	A.2d	886,	890	(Me.	1983)	(noting	that	in	that	case,	“Petitioner	does	not	
argue,	nor	could	he	argue,	that	he	is	challenging	the	underlying	criminal	conviction.”).	
    	
                                                                                                           5	

(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	counsel,”	the	Martinez	Court	was	

careful	to	explain	that		

        [t]his	is	not	the	case	.	.	.	to	resolve	whether	that	exception	exists	as	
        a	 constitutional	 matter.	 	 The	 precise	 question	 here	 is	 whether	
        ineffective	assistance	in	an	initial-review	collateral	proceeding	on	
        a	 claim	 of	 ineffective	 assistance	 at	 trial	 may	 provide	 cause	 for	 a	



    4
      	 Our	 precedent	 establishes	 that	 “[w]e	 do	 not	 consider	 claims	 of	 ineffective	 assistance	
of	counsel	on	direct	appeal;	such	claims	will	only	be	considered	after	a	certificate	of	probable	cause	
has	 been	 issued	 following	 a	 hearing	 on	 a	 post-conviction	 petition.”	 	 Ali,	 2011	 ME	 122,	 ¶	 20,	
32	A.3d	1019.	
    	
    5
      		In	Maine,	a	petitioner	who	wishes	to	be	represented	in	a	post-conviction	proceeding	may	retain	
counsel,	 or	 may	 have	 counsel	 appointed	 by	 establishing	 that	 he	 or	 she	 is	 indigent.	 	 15	 M.R.S.	
§	2129(1)(B)	(2016);	M.R.U.	Crim.	P.	69.	
    	
6	

       procedural	default6	in	a	federal	habeas	proceeding.	.	.	.		This	opinion	
       qualifies	Coleman	by	recognizing	a	narrow	exception:	Inadequate	
       assistance	of	counsel	at	initial-review	collateral	proceedings	may	
       establish	 cause	 for	 a	 prisoner’s	 procedural	 default	 of	 a	 claim	 of	
       ineffective	assistance	at	trial.	
       	
       .	.	.	.	
       	
       Where,	 under	 state	 law,	 claims	 of	 ineffective	 assistance	 of	 trial	
       counsel	must	be	raised	in	an	initial-review	collateral	proceeding,	a	
       procedural	default	will	not	bar	a	federal	habeas	court	from	hearing	
       a	substantial	claim	of	ineffective	assistance	at	trial	if,	in	the	initial-
       review	 collateral	 proceeding,	 there	 was	 no	 counsel	 or	 counsel	 in	
       that	proceeding	was	ineffective.	
       	
Id.	at	9,	17.			

	        [¶8]	 	 In	 reaching	 that	 holding,	 the	 Court	 took	 note	 of	 “the	 differences	

between	a	constitutional	ruling	and	the	equitable	ruling	of	this	case.”		Id.	at	16.		

Not	 surprisingly,	 the	 Circuit	 Courts	 of	 Appeal	 that	 have	 considered	 Martinez	

have	 uniformly	 held	 that	 it	 did	 not	 announce	 a	 new,	 retroactive	 rule	 of	

constitutional	law.7	


     6
     		A	federal	habeas	court	is	guided	by	“the	doctrine	of	procedural	default,	under	which	a	federal	
court	will	not	review	the	merits	of	claims,	including	constitutional	claims,	that	a	state	court	declined	
to	hear	because	the	prisoner	failed	to	abide	by	a	state	procedural	rule.”		Martinez,	566	U.S.	at	9.	
   	
   7
     		See	In	re	Hensley,	836	F.3d	504,	507	(5th	Cir.	2016)	(“Martinez	recognized	a	narrow,	equitable	
exception	 to	 the	 procedural	 default	 doctrine	 .	 .	 .	 .	 That	 decision	 did	 not	 establish	 a	 new	 rule	 of	
constitutional	 law.”	 (quotation	 marks	 omitted));	 In	 re	 Evans,	 No.	 15-1726,	 2015	 U.S.	 App.	 LEXIS	
21525,	at	*1	(3d	Cir.	Apr.	30,	2015)	(“[Petitioner’s]	reliance	on	Martinez	.	.	.	is	unavailing	because	
that	 case	 does	 not	 set	 forth	 a	 new	 rule	 of	 constitutional	 law.”);	 Griffin	 v.	 Sec’y,	 Fla.	 Dep’t	 of	 Corr.,	
787	 F.3d	 1086,	 1094	 (11th	 Cir.	 2015)	 (“Martinez	 .	 .	 .	 is	 not	 retroactively	 applicable.”);	 Bluemel	 v.	
Bigelow,	613	F.	App’x	698,	699	(10th	Cir.	2015)	(“Martinez	.	.	.	did	not	newly	recognize	a	constitutional	
right.”);	In	re	Paredes,	587	F.	App’x	805,	813	(5th	Cir.	2014)	(“[T]he	Supreme	Court	has	not	made	.	.	.	
Martinez	 .	 .	 .	 retroactive	 to	 cases	 on	 collateral	 review	 .	 .	 .	 .”);	 Chavez	 v.	 Sec’y,	 Fla.	 Dep’t	 of	 Corr.,	
                                                                                                                   7	

	        [¶9]		Given	the	Supreme	Court’s	clear	statement	that	Martinez	announced	

a	 narrow	 equitable	 exception	 to	 a	 doctrine	 of	 federal	 procedure,	 not	 a	 new	

constitutional	rule,	and	given	the	weight	of	authority	holding	that	the	Martinez	

exception	is	not	retroactive	in	any	event,	we	conclude	that,	although	Reese	will	

not	 be	 precluded	 from	 seeking	 habeas	 corpus	 review	 in	 the	 federal	 court,	

Martinez	 did	 not	 give	 Reese	 the	 right	 to	 challenge	 the	 effectiveness	 of	

post-conviction	 counsel	 in	 a	 subsequent	 post-conviction	 review	 petition.		

Accordingly,	the	trial	court	properly	dismissed	the	grounds	of	Reese’s	second	

petition	that	attempted	to	mount	such	a	challenge.	

	        The	entry	is:	

                           Judgment	affirmed.	

	        	        	        	        	        	
	
	
	
	
	



742	F.3d	940,	945	(11th	Cir.	2014)	(noting	the	“narrow	scope”	of	the	Martinez	decision	in	creating	
an	 “equitable	 exception”	 to	 a	 rule	 of	 federal	 procedure);	 Pagan-San	 Miguel	 v.	 United	 States,	
736	 F.3d	 44,	 45	 (1st	 Cir.	 2013)	 (per	 curiam)	 (“We	 .	 .	 .	 join	 the	 circuits	 that	 have	 considered	 the	
question	in	holding	that	Martinez	did	not	announce	a	new	rule	of	constitutional	law.”);	Jones	v.	Ryan,	
733	F.3d	825,	843	&	n.6	(9th	Cir.	2013),	cert.	denied,	---	U.S.	---,	134	S.	Ct.	503	(2013)	(declining	to	
reach	the	question	of	whether	Martinez	is	retroactive	in	stating	that,	“[T]he	rule	of	Martinez,	while	
new,	is	not	a	rule	of	constitutional	law.		Further,	we	have	consistently	recognized	that	Martinez	was	
not	 a	 constitutional	 decision.”);	 Hodges	 v.	 Colson,	 727	 F.3d	 517,	 531	 (6th	 Cir.	 2013)	 (stating	 that	
Martinez	 created	 an	 “equitable—as	 opposed	 to	 constitutional—exception”	 (quotation	 marks	
omitted)).	
8	

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	
	
	
Sagadahoc	County	Superior	Court	docket	number	CR-2013-21	
FOR	CLERK	REFERENCE	ONLY	
