Supreme Court

No. 2014-161-Appeal.

(PM 12-4701)

Pedro Reyes :

v. :

State of Rhode Island. :

NOTICE: This opinion is subject to formal revision before 

publication in the Rhode Island Reporter. Readers are requested to 

notify the Opinion Analyst, Supreme Court of Rhode Island, 

250 Benefit Street, Providence, Rhode Island 02903, at Telephone 

222-3258 of any typographical or other formal errors in order that 

corrections may be made before the opinion is published.
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Supreme Court

No. 2014-161-Appeal.

(PM 12-4701)

(Concurrence and dissent begins on page 25)

Pedro Reyes :

v. :

State of Rhode Island. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

O P I N I O N

Justice Indeglia, for the Court. The applicant, Pedro Reyes (Reyes or applicant), 

appeals from the denial of his postconviction-relief application.

1

 It is Reyes’s contention that his

1994 plea of nolo contendere to the offense of maintaining a narcotics nuisance should be 

vacated because the plea was not knowing, intelligent, and voluntary. He also argues that the 

hearing justice erroneously entered judgment for the state on his claims of ineffective assistance 

of counsel, that the hearing justice failed to consider other arguments, and that the attorney 

appointed in connection with his application failed to fulfill his assigned role. This case came 

before the Supreme Court for oral argument on December 1, 2015, pursuant to an order directing 

the parties to appear and show cause why the issues raised in this appeal should not be 

summarily decided. After carefully considering the written and oral submissions of the parties, 

we are satisfied that this appeal may be resolved without further briefing or argument. For the 

reasons set forth in this opinion, we affirm the judgment of the Superior Court.

 1 The record is unclear as to Reyes’s full name. Reyes signed his application with the name 

Pedro Reyes, but the caption of that document identifies him as Pedro Muriel Reyes. 

Additionally, during a change-of-plea hearing in 1994, Reyes indicated that his name was “Pedro 

Jaun [sic] Reyes Muriel.” We simply shall refer to applicant as Reyes.
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I

Facts and Travel

In October 1993, the Attorney General’s Narcotics Strike Force (strike force) was 

conducting an investigation into heroin trafficking in an area near Central Falls High School. On 

October 5, 1993, Investigator Carl Barovier (Barovier), a member of the strike force, approached 

Jose Romero (Romero) to purchase heroin.2

 Romero entered Barovier’s vehicle, and the two 

drove to the vicinity of Central Falls High School. After Barovier parked his vehicle, Romero

exited and approached Ismael Cepeda (Cepeda).

3 The two conversed briefly, and then Cepeda

entered a brown Datsun vehicle that was driven by another male. The vehicle drove off, 

returning about ten minutes later. Cepeda exited the vehicle and gave Barovier five bags 

containing heroin. Barovier relayed his description of the driver of the Datsun to Inspector 

Edward H. Randall (Randall); Randall showed Barovier a photograph of Reyes, and Barovier 

identified Reyes as the driver of the Datsun. Reyes was charged, along with Cepeda and 

Romero, with conspiracy to distribute heroin within three hundred yards of a school (count 1)

and distribution of heroin within three hundred yards of a school (count 2). 

Reyes was represented with respect to these charges by privately retained counsel (trial 

counsel). Eventually, the state dismissed count 2 in accordance with Rule 48(a) of the Superior 

Court Rules of Criminal Procedure in exchange for Reyes’s plea of nolo contendere on count 1

to an amended charge of maintaining a narcotics nuisance. The Superior Court file contains two

plea forms executed by Reyes, one in English and the other in Spanish. At the change-of-plea 

hearing on October 4, 1994, no Spanish interpreter was present, but the record does not indicate 

 2 The facts giving rise to the pertinent offenses with which Reyes was charged have been gleaned 

from the criminal-information package.

3 The record is also unclear as to the precise spelling of Cepeda’s last name; in some documents 

it is spelled “Cepeda,” and, in others, “Cepada.”
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that either trial counsel or Reyes requested the assistance of an interpreter. During the plea 

colloquy, Reyes was able to respond, in English, to the trial justice’s questions.4

 Reyes provided 

his name and date of birth, and he indicated that he wished to change his plea even before trial 

counsel responded to that question from the trial justice. Reyes stated that he understood that, by 

pleading nolo contendere, he was forfeiting several constitutional rights, and, when asked 

whether he had any questions about those rights, he responded that he did not. After the 

prosecutor provided the facts in support of the amended charge, Reyes accepted those facts as 

true. The trial justice found that Reyes “does have the capacity to understand the nature and 

consequences of his plea including but not limited to the waiver of those rights which I have 

reviewed with him” and that there was a sufficient factual basis for a plea of nolo contendere. 

He therefore accepted Reyes’s plea and sentenced him to a two-year suspended sentence with 

three years of probation. In consideration of Reyes’s plea, the state elected to refrain from 

presenting Reyes as a violator of a previously imposed probationary sentence. 

Time marched on, and Reyes did not reform his behavior. He subsequently was adjudged 

to be a probation violator and served a period of incarceration as a result. Additionally, in 2002, 

he was convicted of second-degree murder, discharging a firearm during the commission of a 

crime of violence that resulted in death, and carrying a pistol without a license. See State v. 

Reyes, 984 A.2d 606, 609, 612 (R.I. 2009).5 For those charges, Reyes was sentenced to two 

consecutive life sentences. Id. The state also sought the imposition of an additional sentence on 

the ground that Reyes was a habitual offender under G.L. 1956 § 12-19-21. The conviction 

 4 To distinguish between the different Superior Court justices involved in the relevant 

proceedings, we refer to the justice who presided over Reyes’s 1994 change-of-plea hearing as 

“the trial justice” and the justice who presided over the hearings on his application as “the 

hearing justice.”

5 The facts underlying these convictions are set forth in detail in our opinion affirming his 

conviction, State v. Reyes, 984 A.2d 606, 609-12 (R.I. 2009), and need not be repeated here.
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secured by the 1994 nolo contendere plea was one of the predicate offenses that qualified Reyes 

as a habitual offender. Reyes received a ten-year sentence on the habitual-offender charge, to be 

served concurrently with his second life sentence.

In September 2012, Reyes filed a pro se application, in which he sought to vacate his 

1994 nolo contendere plea.

6 The application set forth several allegations of ineffective 

assistance by trial counsel, which fell into two general categories: failure to adequately 

investigate the case and prepare a defense; and failure to communicate with Reyes through an 

interpreter so that Reyes could meaningfully participate in the preparation of his defense, even 

though, according to Reyes, trial counsel knew that he “barely spoke English.” With respect to 

the failure-to-investigate category, Reyes averred that his codefendants in the proceedings that 

culminated in his 1994 plea “exonerated [Reyes] at a bail hearing,” but trial counsel failed to 

interview these witnesses. One of the paramount allegations in the second category—lack of 

communication—was that, because trial counsel failed to engage a translator, he was unable to 

adequately inform Reyes about the nature and consequences of his plea. In addition to his 

ineffectiveness claims, Reyes also alleged, citing Boykin v. Alabama, 395 U.S. 238 (1969), that 

the trial justice erred in accepting his plea because (i) Reyes did not understand the nature of the 

amended charge, (ii) the trial justice overlooked the exculpatory statements of Reyes’s 

codefendants, and (iii) the lack of factual basis for the plea. In addition to his application, Reyes 

also filed a motion for appointment of counsel as an indigent applicant under G.L. 1956 § 10-

9.1-5.

In accordance with § 10-9.1-5, the hearing justice first referred the matter to the Office of 

the Public Defender. Because a conflict of interest precluded a member of that office from 

 6 Despite the lag time between the 1994 plea and the filing of the application, the state opted not

to argue below that the application should be dismissed as untimely under the doctrine of laches. 
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representing Reyes, an attorney (postconviction counsel) was appointed to represent Reyes in 

connection with his application. In connection with his investigation, postconviction counsel

met with Reyes on four occasions; he did not, however, speak with trial counsel. Postconviction 

counsel also searched for transcripts or recordings of the allegedly exculpatory bail-hearing 

testimony that Reyes claimed was given by his codefendants. Postconviction counsel’s search 

revealed that the bail hearing was continued twice with no testimony; the records for the third 

and final day of the bail hearing revealed that, once again, no witnesses testified and that the 

defendants had admitted that the state had satisfied its burden of showing that bail was not 

appropriate. This search led postconviction counsel to conclude that the allegedly exculpatory 

bail-hearing testimony did not exist. Because postconviction counsel’s investigation of Reyes’s 

claims led him to the conclusion that Reyes’s postconviction claims lacked merit, he moved to 

withdraw and filed an accompanying forty-two-page no-merit memorandum explaining the 

reasons behind that conclusion, in accordance with the procedure outlined by this Court in 

Shatney v. State, 755 A.2d 130 (R.I. 2000).7

 

 7 “In Shatney [v. State, 755 A.2d 130 (R.I. 2000)], [this Court] established a procedure by which 

an attorney * * * who has been appointed to represent an applicant for postconviction relief may 

later seek to withdraw from that representation under specific and limited circumstances[.]” 

Campbell v. State, 56 A.3d 448, 455 (R.I. 2012). Specifically, we provided that:

“[U]pon notice to the applicant, counsel for an applicant may request permission 

from the court to withdraw, based upon an assessment that the application has no 

arguable merit. To do so, however, [postconviction] counsel must file with the 

court and serve upon the applicant a motion to withdraw accompanied by a ‘nomerit’ memorandum that details the nature and extent of his or her review of the 

case, lists each issue the applicant wished to raise, and explains why in counsel’s 

professional opinion those issues and any others that he or she may have 

investigated lacked merit. The court then must conduct a hearing with the

applicant present. If, based upon its review of counsel’s assessment of the 

potential grounds for seeking post-conviction relief and of any other issues that 

the applicant wishes to raise, the court agrees that those grounds appear to lack 

any arguable merit, then it shall permit counsel to withdraw and advise the 
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During the hearing on postconviction counsel’s motion to withdraw, Reyes stated that he 

had read the no-merit memorandum and had no difficulty understanding its contents. Reyes 

acknowledged that the memorandum discussed all of the issues that he sought to raise in his 

application.8 When Reyes cryptically alluded to a letter from postconviction counsel to Reyes 

that, according to Reyes, indicated that postconviction counsel represented the state and not 

Reyes, the hearing justice properly assured Reyes that postconviction counsel was his attorney. 

Reyes objected to the motion to withdraw on the grounds that postconviction counsel failed to 

hire an interpreter or an investigator and that he failed to interview trial counsel in connection 

with his investigation. Postconviction counsel responded that he did not deem an interview with

trial counsel to be necessary or appropriate based on his conclusion that Reyes knowingly and 

voluntarily entered into his plea in 1994. Postconviction counsel also explained that he did not 

think that an interpreter was necessary during his meetings with Reyes because Reyes had taken 

English classes while incarcerated and his proficiency with the English language allowed

 

applicant that he or she shall be required to proceed pro se, if he or she chooses to 

pursue the application.” Shatney, 755 A.2d at 135.

8 Postconviction counsel identified twelve claims, many of which overlapped one another, that 

Reyes raised in his application: (1) ineffective assistance of counsel in failing to adequately 

prepare for representation of Reyes; (2) ineffective assistance of counsel in failing to research 

and interview the important state witnesses; (3) ineffective assistance of counsel in trial 

counsel’s failure to meet with Reyes and to communicate with him through an interpreter; (4) 

ineffective assistance of counsel in failing to file appropriate pretrial motions; (5) Reyes’s plea 

was “tainted and coerced” by the illegal and improper actions of the strike force; (6) ineffective 

assistance of counsel in allowing Reyes to plead nolo contendere without the assistance of an

interpreter; (7) ineffective assistance of counsel in trial counsel’s failure to discuss the law 

governing the crimes with which Reyes was charged; (8) ineffective assistance of counsel in 

failing to advise Reyes as to the legal consequences of a plea of nolo contendere; (9) ineffective 

assistance of counsel in allowing Reyes to enter his plea when trial counsel knew, or reasonably 

should have known, that exculpatory evidence existed that, at the very least, cast reasonable 

doubt on Reyes’s guilt; (10) the photo identification in which Reyes was identified as the driver 

of the automobile was unconstitutional; (11) the trial justice should not have accepted his plea in 

1994 because it was unclear whether Reyes understood the consequences of entering into the 

plea; and (12) the trial justice failed to review the case to determine whether Reyes was guilty of 

the charged offenses. 
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adequate communication between them. Postconviction counsel professed to having “absolutely 

no problems communicating with [Reyes] at all.” 

The hearing justice granted the motion to withdraw and explained to Reyes that he could 

still proceed pro se on his application or retain another attorney at his own expense. 

Additionally, she gave Reyes approximately six weeks to submit a memorandum outlining why 

he was entitled to postconviction relief. She also notified him, in accordance with § 10-9.1-6, 

that she was inclined to dismiss his application on the merits unless he came forward with 

“something of great significance * * * that persuades the [c]ourt that [he] would have gone to 

trial” on the 1994 charges. During the hearing, Reyes filed a pro se motion for funds to hire a 

private investigator to track down his codefendants from the 1994 case. The hearing justice 

denied the motion, concluding that the private investigator’s efforts would reach the same 

conclusion that postconviction counsel had reached after his search for the bail-hearing

testimony.

At the next hearing, Reyes provided a witness statement from Cepeda (Cepeda 

statement), one of his codefendants in the 1994 case.9

 In that statement, which was taken over 

the telephone by a private investigator, Cepeda explained that he gave testimony to the effect that 

he never distributed drugs with Reyes. The hearing justice continued the matter to give the state 

adequate time to review the Cepeda statement and to decide how to proceed. 

At the hearing justice’s behest, the state filed a motion for summary dismissal. At the 

hearing on the motion for summary dismissal, the hearing justice gave Reyes an opportunity to 

be heard. Reyes responded as follows: “I don’t have anything to say right now. Everything that 

I wanted to say, I put in the memorandum.” This memorandum mentioned only two documents 

 9 See Appendix A.
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in support of it: the Cepeda statement and a notice of the state’s intent to pursue a habitual 

offender sentence. The hearing justice determined that there were no genuine issues of material 

fact as to any of the claims raised in the application and granted the state’s motion. First, with 

respect to the allegations of ineffective assistance of counsel, the hearing justice reasoned that, 

because Reyes ultimately received a “less-than-jail sentence on an amended charge” and was not 

presented as a probation violator as a result of the plea agreement, Reyes was unable to satisfy

the prejudice prong of the ineffectiveness inquiry. In addition to noting this favorable plea 

disposition, she observed that the Cepeda statement was neither an original document nor 

executed by Cepeda under the penalty of perjury and that, in any event, it was directed at the 

offenses with which Reyes was originally charged. The hearing justice therefore concluded that 

the statement “ha[d] no bearing on the amended charge to which [Reyes] pled.” 

With respect to Reyes’s challenge to the adequacy of the 1994 plea colloquy, the hearing 

justice, while acknowledging the presence of the Spanish plea form, found no fault in the trial 

justice’s colloquy. She noted that there was no evidence in the plea-colloquy transcript that 

indicated that Reyes had difficulty understanding the trial justice’s questions; there was no 

indication that Reyes needed to speak with trial counsel during the colloquy; no request for an 

interpreter was made; and Reyes responded in the affirmative on numerous occasions when 

asked by the trial justice whether he understood a particular consequence of his guilty plea. The 

hearing justice rejected Reyes’s argument that either the trial justice or trial counsel was required 

to inform Reyes about any collateral consequence that might arise from his plea or that it might

form the basis of a habitual-offender sentencing enhancement in the event that Reyes continued 

down the criminal path. Ultimately, the hearing justice concluded that Reyes understood the 

nature and consequences of his plea and that the plea was voluntary. Accordingly, the hearing 
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justice granted the state’s motion for summary judgment and dismissed the application under § 

10-9.1-6. Reyes timely appealed.10 

II

Standard of Review for Summary Dismissal

Before turning to the merits of Reyes’s arguments on appeal, we first set forth the 

parameters under which an application can be summarily dismissed under § 10-9.1-6—the 

procedure utilized by the hearing justice in this case. Section 10-9.1-6 provides, in pertinent 

part, as follows:

“(b) When a court is satisfied, on the basis of the 

application, the answer or motion, and the record, that the 

applicant is not entitled to post conviction relief and no purpose 

would be served by any further proceedings, it may indicate to the 

parties its intention to dismiss the application and its reasons for so 

doing. The applicant shall be given an opportunity to reply to the 

proposed dismissal. In light of the reply, or on default thereof, the 

court may order the application dismissed or grant leave to file an 

amended application or direct that the proceedings otherwise 

continue. Disposition on the pleadings and record is not proper if 

there exists a genuine issue of material fact.

“(c) The court may grant a motion by either party for 

summary disposition of the application when it appears from the 

pleadings, depositions, answers to interrogatories, and admissions 

and agreements of fact, together with any affidavits submitted, that 

there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law.”

 

Dismissal under § 10-9.1-6(b) is akin to a dismissal under Rule 12(b)(6) of the Superior 

Court Rules of Civil Procedure and is subject to the same standard. Palmigiano v. State, 120 R.I. 

402, 404-05, 387 A.2d 1382, 1384 (1978). In contrast, summary dismissal under § 10-9.1-6(c) 

 10 After Reyes appealed but before oral argument in this case, the General Assembly amended 

§ 10-9.1-9 to require a party aggrieved by a final judgment entered in a postconviction-relief

proceeding to seek review by filing a petition for writ of certiorari with this Court. See P.L. 

2015, ch. 91, § 1; P.L. 2015, ch. 92, § 1.
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“closely resembles” a grant of summary judgment under Rule 56 of the Superior Court Rules of 

Civil Procedure, Palmigiano, 120 R.I. at 405, 387 A.2d at 1384, and “[t]he standards for granting 

a § 10-9.1-6(c) [summary dismissal] are identical to those utilized in passing on a summary 

judgment motion.” Palmigiano, 120 R.I. at 406, 387 A.2d at 1385. Critically, summary 

dismissal is improper if a genuine issue of material fact exists. See § 10-9.1-6(c). Thus, a 

hearing justice’s role in considering whether to dismiss an application summarily under § 10-9.1-

6(c) is limited to determining whether genuine issues of material fact exist; the hearing justice

cannot resolve those issues or “pass on the weight or credibility of the evidence.” Doyle v. State, 

122 R.I. 590, 594, 411 A.2d 907, 909 (1980). On appeal from a summary dismissal under § 10-

9.1-6, “[w]e will uphold the [hearing] justice’s decision only if the record shows that no genuine 

issue of material fact exists and the state is entitled to summary disposition as a matter of law.” 

Palmigiano, 120 R.I. at 406-07, 387 A.2d at 1385. As in cases in which we review the grant of 

summary judgment, our review is de novo.

11 See Estrada v. Walker, 743 A.2d 1026, 1028 (R.I. 

1999).

III

Analysis

A

Sufficiency of Rule 11 Inquiry

Reyes first contends that his 1994 nolo contendere plea should be vacated because it did 

not conform to Rule 11 of the Superior Court Rules of Criminal Procedure and was not a

 11 In past cases involving summary dismissal of an application, we have remarked that we defer 

to the factual findings of a hearing justice in the postconviction-relief context. See, e.g., Miguel 

v. State, 774 A.2d 19, 21 (R.I. 2001). Although undeniably a correct explication of the manner 

in which we review the factual findings of a lower tribunal, this standard of review is inapposite 

in cases where the application is summarily dismissed because no such findings can be made by 

the hearing justice at this juncture. 
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knowing, intelligent, and voluntary plea. He argues that the trial justice’s brief colloquy at the 

change-of-plea hearing was insufficient to ensure that he understood the nature of the charge and 

consequences of his plea and that the trial justice should have exercised his discretion to appoint 

an interpreter. At oral argument before this Court, Reyes took his contention one step further, 

arguing that, whenever a Spanish language plea form is utilized, a trial justice must appoint an 

interpreter even when one is not requested. Neither Rule 11 nor this Court’s jurisprudence 

supports such an absolute rule. 

Rule 11 provides in pertinent part: 

“The court * * * shall not accept [a plea of guilty] or a plea of nolo 

contendere without first addressing the defendant personally and 

determining that the plea is made voluntarily with understanding of 

the nature of the charge and the consequences of the plea. * * *

The court shall not enter a judgment upon a plea of guilty or nolo 

contendere unless it is satisfied that there is a factual basis for the 

plea.”

Rule 11 thus sets forth two prerequisites that must be satisfied at the plea colloquy before a plea 

of nolo contendere can be accepted: (1) a determination “that the plea is made voluntarily with 

understanding of the nature of the charge and the consequences of the plea”; and (2) a finding 

“that there is a factual basis for the plea.” Id. Notably, neither prerequisite imposes the brightline rule that Reyes champions before this Court.

Similarly, this Court has never declared that a trial justice must appoint an interpreter in 

every case in which a non-English plea form is utilized. To the contrary, we have held that the 

trial justice has discretionary authority to appoint an interpreter, see State v. Ibrahim, 862 A.2d 

787, 798 (R.I. 2004), and we afford the the trial justice “‘large discretion’ in the ‘selection, 

appointment, and retention of an interpreter.’” State v. Lopez-Navor, 951 A.2d 508, 513 (R.I. 
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2008) (quoting State v. Deslovers, 40 R.I. 89, 115, 100 A. 64, 73 (1917)).12 Absent “clear 

evidence of prejudice, we will not disturb the trial justice’s discretion.” Id.

In this case, “it is not readily apparent [from our review of the transcript of Reyes’s 

change-of-plea hearing] that [Reyes] did not have a basic, functional understanding of English.” 

Ibrahim, 862 A.2d at 798. Reyes answered all of the questions posed to him, and there is no 

indication that he was confused or had difficulty understanding the discourse at any point during 

the hearing. Reyes contends that the transcript of the change-of-plea colloquy “suggest[s] a lack 

of actual understanding since his responses [to the trial justice’s questions] were all nondescriptive ‘Yes’ and ‘No’ answers.” We disagree. When the trial justice asked whether Reyes 

wished to change his plea, Reyes answered affirmatively even before trial counsel was able to do 

so. Reyes also provided, without any apparent difficulty, his name and date of birth upon 

request. We glean nothing from the record to suggest that anything occurred at the hearing to put 

the trial justice on notice to inquire further into whether Reyes required an interpreter. In short, 

there is nothing in this record that suggests that the trial justice abused his discretion by failing

sua sponte to appoint an interpreter. 

We are also convinced that the change-of-plea colloquy otherwise satisfied Rule 11 and 

that Reyes’s plea was knowing, intelligent, and voluntary. The trial justice explained to Reyes 

that he was forfeiting several constitutional rights by entering a plea of nolo contendere, and he 

ensured that Reyes had no questions about those rights and understood the consequences of his 

plea. Additionally, the state recited the facts supporting the amended charge, Reyes 

acknowledged that those facts were true, and the trial justice found that there was a factual basis 

for the plea. See Rodrigues v. State, 985 A.2d 311, 315 (R.I. 2009) (“This Court ‘shall not 

 12 General Laws 1956 chapter 19 of title 8 is not implicated in this case because Reyes entered 

his plea before the effective date of that chapter.
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vacate a plea unless the record viewed in its totality discloses no facts that could have satisfied 

the trial justice that a factual basis existed for a defendant’s plea.’” (quoting State v. Frazar, 822 

A.2d 931, 935-36 (R.I. 2003))). Finally, the trial justice explained to Reyes the sentence that he 

would be imposing and ensured that Reyes had no questions about the consequences of the 

suspended sentence and accompanying probationary term. On this record, we must conclude 

that the trial justice’s finding that Reyes understood the nature and consequences of his plea is 

unassailable. 

B

Ineffective Assistance of Counsel

Reyes next contends that the hearing justice improperly dismissed his claims of 

ineffective assistance of counsel because a genuine issue of material fact existed that precluded 

summary dismissal. Before addressing the propriety of the summary dismissal of his claims,

however, we first briefly clarify the legal framework under which such a claim must be decided. 

It is well established that, in this jurisdiction, ineffective-assistance-of-counsel claims are 

assessed under the familiar two-pronged test announced by the United States Supreme Court in 

Strickland v. Washington, 466 U.S. 668, 687 (1984). See Bido v. State, 56 A.3d 104, 110 (R.I. 

2012); Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987); Barboza v. State, 484 A.2d 881, 883-84 

(R.I. 1984). Under this framework, an applicant for postconviction relief first “must establish 

that counsel’s performance was constitutionally deficient; ‘[t]his requires [a] showing that 

counsel made errors so serious that counsel was not functioning as the counsel guaranteed * * * 

by the Sixth Amendment.’” Bido, 56 A.3d at 110-11 (quoting Neufville v. State, 13 A.3d 607, 

610 (R.I. 2011)); see also Strickland, 466 U.S. at 687. To satisfy the performance prong, “the 

[applicant] must show that counsel’s representation fell below an objective standard of 
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reasonableness.” Strickland, 466 U.S. at 688. Courts evaluate counsel’s performance “in a 

‘highly deferential’ manner,” Bido, 56 A.3d at 111 (quoting Lynch v. State, 13 A.3d 603, 606 

(R.I. 2011)), employing “a strong presumption that counsel’s conduct falls within the permissible 

range of assistance,” id. (quoting Neufville, 13 A.3d at 610). See also Strickland, 466 U.S. at 

689.

The second prong of the Strickland standard requires an applicant to “show that he [or 

she] was prejudiced by this deficient performance.” Bido, 56 A.3d at 111 (quoting Lynch, 13 

A.3d at 605). To satisfy the prejudice prong, “[t]he [applicant] must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694; see also Bido, 56 A.3d at 111. 

In the years since our adoption of Strickland’s performance and prejudice prongs,

however, a handful of our cases have somewhat amplified that standard. In State v. Dunn, 726 

A.2d 1142 (R.I. 1999), we stated, in dictum,

13 that:

“We note also that rarely, if ever, following conviction has 

any federal or state court permitted a defendant who has been 

represented by private counsel to later question, in post-conviction 

proceedings, the ineffectiveness or inefficiency of the trial counsel 

that the defendant chose and selected to represent him or her at 

trial. The ‘incompetency (or one of its many synonyms) of private 

counsel for the defendant in a criminal prosecution is neither a 

denial of due process under the Fourteenth Amendment, nor an 

infringement of the right to be represented by counsel under either 

the federal or state constitution, unless the attorney’s 

representation is so lacking that the trial has become a farce and a 

mockery of justice, in which case the judgment, violating either the 

Fifth, Sixth, or Fourteenth Amendment to the Federal Constitution, 

or a provision of a state constitution, is void.’” Id. at 1146 n.4

 13 In State v. Dunn, 726 A.2d 1142, 1145-46 (R.I. 1999), we held that the trial justice clearly 

erred in granting the defendant’s motion for a new trial on the ground of ineffective assistance of 

counsel—an issue that was not raised by the defendant.
- 15 -

(quoting Annotation, Incompetency of Counsel, 74 A.L.R.2d 1390, 

1397 (1960)) (emphasis added).

Although by no means a constant feature of our ineffective-assistance-of-counsel jurisprudence, 

this farce-and-mockery language has reappeared on several occasions, both in cases where

defense counsel evidently was privately retained14 and in cases where it was unclear whether 

defense counsel was retained or appointed.15 In this case, postconviction counsel and the hearing 

justice referenced this language when assessing Reyes’s allegations that trial counsel, who was 

privately retained, was ineffective. On appeal, Reyes argues that this language “is not part of the 

Sixth Amendment effective[-]assistance[-]of[-]counsel jurisprudence.”

We take this opportunity to abandon any distinction in our ineffective-assistance-ofcounsel jurisprudence between privately retained defense counsel and court-appointed defense 

counsel. In Evitts v. Lucey, 469 U.S. 387, 395 (1985), the Supreme Court declared that “the 

constitutional guarantee of effective assistance of counsel at trial applies to every criminal 

prosecution, without regard to whether counsel is retained or appointed.” Similarly, in Cuyler v. 

Sullivan, 446 U.S. 335, 344-45 (1980), the Supreme Court cautioned that: 

“A proper respect for the Sixth Amendment disarms 

petitioner’s contention that defendants who retain their own 

lawyers are entitled to less protection than defendants for whom 

the State appoints counsel. * * * Since the State’s conduct of a 

criminal trial itself implicates the State in the defendant’s 

 14 See, e.g., Brown v. State, 964 A.2d 516, 527 n.15 (R.I. 2009); Chalk v. State, 949 A.2d 395, 

398 (R.I. 2008); Burke v. State, 925 A.2d 890, 893 (R.I. 2007); Larngar v. Wall, 918 A.2d 850, 

856 & n.6, 858 (R.I. 2007); Hampton v. State, 786 A.2d 375, 381 (R.I. 2001); Vorgvongsa v. 

State, 785 A.2d 542, 548 (R.I. 2001); Heath v. Vose, 747 A.2d 475, 477 n.1 (R.I. 2000); cf.

Hassett v. State, 899 A.2d 430, 434 n.3 (R.I. 2006) (although not employing the farce-andmockery language, explaining that “challenges to the performance of private counsel in 

postconviction relief proceedings rarely succeed, and when a person selects his or her own 

attorney, any alleged deficiencies seldom amount to an infringement of one’s constitutional 

rights”).

15 See, e.g., Pelletier v. State, 966 A.2d 1237, 1241 (R.I. 2009); Moniz v. State, 933 A.2d 691, 

696, 697 (R.I. 2007); Ferrell v. Wall, 889 A.2d 177, 191 (R.I. 2005).
- 16 -

conviction, we see no basis for drawing a distinction between 

retained and appointed counsel that would deny equal justice to 

defendants who must choose their own lawyers.” 

Additionally, we are of the opinion that the farce-and-mockery language contained in 

Dunn and its progeny is a relic of a bygone era that has no place in assessing claims of 

ineffective assistance of counsel after Strickland. The farce-and-mockery standard evidently was 

first announced in Diggs v. Welsh, 148 F.2d 667, 669, 670 (D.C. Cir. 1945), and, by the time the 

United States Supreme Court decided Strickland in 1984, every federal circuit had rejected it in 

favor of a standard requiring reasonably competent or effective assistance. See Trapnell v. 

United States, 725 F.2d 149, 151-53, 155 (2d Cir. 1983) (chronicling origin of and gradual 

departure from farce-and-mockery standard and adopting standard of reasonably competent 

assistance in its place).16 Nothing the Supreme Court said in Strickland purported to revive the 

farce-and-mockery standard. Moreover, the farce-and-mockery standard has its roots in the Due 

Process Clause of the Fifth Amendment to the United States Constitution, see Diggs, 148 F.2d at 

669; see also Trapnell, 725 F.2d at 154, while claims of ineffective assistance of counsel are 

grounded in the guarantee of the assistance of counsel contained in the Sixth Amendment to the 

United States Constitution, see Strickland, 466 U.S. at 684-86, and its Rhode Island counterpart, 

the Declaration of Rights, article 1, section 10 of the Rhode Island Constitution, see Merida v. 

State, 93 A.3d 545, 549 (R.I. 2014). Henceforth, claims of ineffective assistance of counsel—

whether the attorney is privately retained or court appointed—shall continue to be decided by 

reference to the familiar performance and prejudice prongs of the Strickland standard.17

 16 We also note that the annotation from which we quoted the farce-and-mockery language in 

Dunn, 726 A.2d at 1146 n.4, similarly predated Strickland. 17 We do not imply that the difference in phraseology between the performance and prejudice 

prongs of Strickland v. Washington, 466 U.S. 668 (1984), and the farce-and-mockery language 

would necessarily make a difference in the adjudication of an ineffective-assistance-of-counsel 
- 17 -

With the governing standard in proper focus, we turn to its application in this case. On 

appeal, Reyes contends that the Cepeda statement raised a genuine issue of material fact that 

precluded summary dismissal of his claims of ineffective assistance of counsel. We take no 

issue, however, with the hearing justice’s determination that no genuine issue of material fact 

existed. While the Cepeda statement may cause some to have doubts about Reyes’s involvement

in the 1994 incident, the statement is riddled with maladies that barred it from the hearing 

justice’s consideration on summary dismissal. Part and parcel of our summary judgment 

standard (which the summary dismissal standard so closely mirrors) is that the evidence to be 

considered when determining whether a genuine issue of material fact exists must be admissible. 

See Carlson v. Town of South Kingstown, 131 A.3d 705, 708 (R.I. 2016) (“We will affirm a 

lower court's decision only if, after reviewing the admissible evidence in the light most favorable 

to the nonmoving party, we conclude that no genuine issue of material fact exists and that the 

moving party is entitled to judgment as a matter of law.” (emphasis added) (quoting Daniels v. 

Fluette, 64 A.3d 302, 304 (R.I. 2013))); see also Mruk v. Mortgage Electronic Registration 

Systems, Inc., 82 A.3d 527, 534 (R.I. 2013) (recognizing that affidavits must be “made on 

personal knowledge, * * * set forth such facts as would be admissible in evidence, and * * * 

show affirmatively that the affiant is competent to testify to the matters stated therein[,]” and that 

the failure to comply with these requirements renders them inadmissible and, thus, “useless in 

establishing the absence of a genuine issue of material fact” (quoting Nichola v. Fiat Motor Co., 

 

claim in any particular case; indeed, we suspect that such a difference would exist “only in the 

rarest case.” Strickland, 466 U.S. at 697; see also Trapnell v. United States, 725 F.2d 149, 153 

(2d Cir. 1983) (“[W]e have repeatedly applied both standards[—the farce-and-mockery standard 

and the standard of reasonably competent assistance—]in recent years and never found that the 

result of a case hinged on the choice of a particular standard.”). Our review of the cases in which 

we have employed the farce-and-mockery language convinces us that none of them fall into this 

exceedingly narrow category. 
- 18 -

463 A.2d 511, 513 (R.I. 1983))); Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield 

Pike Realty Corp., 994 A.2d 54, 57 (R.I. 2010) (acknowledging that summary judgment should 

be affirmed only if no genuine issue of material fact exists based upon a review of the admissible

and competent evidence); Nichola, 463 A.2d at 513-14 (noting that statements within an affidavit 

that “amounted to little more than hearsay” should not be considered by a trial justice in ruling 

on a summary judgment motion). 

Here, the Cepeda statement would not stand the slightest chance of being admissible. 

First, the witness statement is not presented in the form of an affidavit or other type of sworn 

testimony, as is made obvious based upon the method of delivery (via telephone). Furthermore, 

the statement was somehow “notarized” by one Nicholas Cardarelli, with, in place of the 

witnesses’s signature, the words “RECORDED OVER TELEPHONE.”18 In addition, to the 

extent that the witness statement contains statements delivered to and transcribed by Cardarelli, 

the statements constitute hearsay. To that end, we have held that, where statements within a 

sworn affidavit would constitute hearsay, such statements should not be considered in ruling on a 

summary judgment motion. See Nichola, 463 A.2d at 513-14. Thus, the hearing justice properly 

concluded that the Cepeda statement did not create a genuine issue of material fact.

19 Aside 

from a notice of the state’s intent to pursue a habitual offender sentence, Reyes produced nothing 

 18 Although we are not in a position to opine as to whether any of the Standards of Conduct for 

Notary Publics were violated, we are troubled by the fact that Cardarelli affixed his signature and 

notary seal to a statement that was not given in person by Cepeda, nor was it signed by Cepeda. 19 The dissent downplays the defective and untrustworthy nature of the Cepeda statement and 

suggests that the notary public’s “mistake” should not foreclose Reyes’s postconviction claim. 

However, because of the notary’s disregard for his duties, it is unclear whether Cepeda was even 

the person with whom he spoke on the telephone and from whom he received a statement. 

Contrary to the dissent’s insistence, the Cepeda statement was useless for purposes of opposing 

summary dismissal consistent with the standards underlying Rule 56 of the Superior Court Rules 

of Civil Procedure. 
- 19 -

else in opposition to the state’s motion for summary dismissal; the hearing justice properly 

granted the motion.20

C

Postconviction Counsel’s Compliance with § 10-9.1-5 and Shatney

Finally, Reyes contends that the efforts of his postconviction counsel were inadequate. 

Specifically, he faults postconviction counsel for “simply respond[ing]” to Reyes’s 

postconviction claims instead of “mak[ing] an effort to narrow [the] issues, re[]frame[,] or 

supplement them,” not speaking with trial counsel or reviewing his files, and failing to hire an 

investigator. We reject these contentions.

“[T]he right to counsel in a postconviction-relief proceeding is a matter of legislative 

grace, not constitutional right.”21 Campbell v. State, 56 A.3d 448, 454 (R.I. 2012). Section 10-

 20 In concluding that the production of the Cepeda statement should have precluded summary 

disposition, the dissent suggests that we turn both our existing postconviction relief case law and 

§ 10-9.1-6(c) on its head. When a hearing justice grants a motion to withdraw pursuant to 

Shatney, the applicant has the option of proceeding pro se on his application or retaining another 

attorney at his own expense. See Shatney, 755 A.2d at 135. Independent of this withdrawal, if 

the circumstances warrant, the hearing justice “may grant a motion by either party for summary 

disposition of the application when * * * there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law.” Section 10-9.1-6(c). The applicant is 

not entitled to any special treatment because—after his postconviction claims were determined to 

be meritless—he is forced to now proceed pro se. Nevertheless, the dissent suggests the system 

should bend over backwards for an applicant after withdrawal of postconviction counsel by 

allowing an applicant to oppose summary dismissal with inadmissible evidence, or, in the 

alternative, entitling the applicant to a warning and a second shot when he submits inadmissible 

evidence. This is not only impractical, but also flies in the face of longstanding authority. 

21 Although Reyes cites Martinez v. Ryan, 132 S. Ct. 1309 (2012), in his show-cause statement 

for an unrelated proposition, he did not argue to the Superior Court and has not argued to this 

Court on appeal that there is a constitutional right to counsel in this collateral proceeding with 

respect to his claims of ineffective assistance of counsel. The United States Supreme Court in 

Martinez noted that it is an open question “whether a prisoner has a [constitutional] right to 

effective counsel in collateral proceedings [that] provide the first occasion to raise a claim of 

ineffective assistance at trial,” but it did not decide that question in Martinez, id. at 1315, and has 

not decided it since. Because it is not properly before us in this case, we express no opinion on 

this issue. 
- 20 -

9.1-5 provides that, in cases like this one where the Office of the Public Defender is unable to 

represent the applicant, “the court shall assign counsel to represent the applicant.” As is true in 

other contexts, “[t]he hallmarks of a meaningful attorney-client relationship * * *, including 

zealous advocacy and the protection of the [client’s] confidences,” exist between the applicant 

and counsel appointed under § 10-9.1-5. Campbell, 56 A.3d at 454-55; see also id. at 455 

(“Section 10-9.1-5 cannot be satisfied with anything less than a meaningful attorney-client 

relationship between appointed counsel and his or her client.”).

Of course, relations between attorney and client do not always remain harmonious. In 

some cases, postconviction applicants insist on pressing claims that are frivolous or mendacious,

notwithstanding the risk of sanctions for violating Rule 11 of the Superior Court Rules of Civil 

Procedure.22 Attorneys who are appointed to represent a postconviction applicant, on the other 

hand, cannot ignore the requirements of Rule 11. In recognition of this potential conflict, we 

adopted a mechanism in Shatney so “that an attorney * * * appointed to represent an indigent 

applicant may withdraw from that representation when it becomes clear, after a reasonable 

investigation, that some or all of the applicant’s claims lack merit.” Campbell, 56 A.3d at 455-

56. 

Within this framework, Reyes’s assignments of error regarding postconviction counsel 

are unpersuasive. Our decision in Campbell involved the paradigm example of noncompliance 

with § 10-9.1-5. In that case, despite the applicant’s repeated requests for counsel, the hearing 

justice appointed an attorney to conduct an “independent examination” of whether the 

 22 Rule 11 of the Superior Court Rules of Civil Procedure, which applies in the postconviction

context, see Campbell, 56 A.3d at 455, gives the trial court discretion to impose sanctions where 

a signed pleading, motion, or other paper is not “well grounded in fact and * * * warranted by 

existing law or a good faith argument for the extension, modification, or reversal of existing law

* * *.” Rule 11; see generally FIA Card Services, N.A. v. Pichette, 116 A.3d 770, 778-79 (R.I. 

2015).
- 21 -

applicant’s claims were meritorious. Campbell, 56 A.3d at 451, 452. The hearing justice 

repeatedly informed the applicant that the appointed counsel did not represent him. Id. at 452-

53. We determined that the appointment of counsel in Campbell failed to comply with the 

requirements of § 10-9.1-5. Campbell, 56 A.3d at 456, 461-62.

This case is nothing like Campbell. The record is clear that postconviction counsel 

functioned as Reyes’s attorney;

23 he met with Reyes on four separate occasions and expended 

considerable effort to locate the alleged exculpatory bail-hearing testimony about which, 

according to Reyes, trial counsel knew or should have known. At the hearing on the motion to 

withdraw, postconviction counsel represented that he “spent hours” attempting to locate the 

alleged bail-hearing testimony, and he chronicled his efforts in detail. In denying Reyes’s 

motion for funds to hire a private investigator, the hearing justice explained that “[postconviction 

counsel] did everything that [he] could do to determine if there was any recording from that 

hearing.” Against this backdrop, Reyes’s argument with respect to postconviction counsel’s 

failure to hire an investigator rings hollow. It was permissible for postconviction counsel to take 

it upon himself to perform the investigative responsibilities that he deemed necessary; he was not 

required to hire an investigator to undertake duplicative efforts. Cf. Campbell, 56 A.3d at 455-

56 (“The procedure set forth in Shatney simply applies Rule 11’s proviso to the context of the 

postconviction remedy, such that an attorney * * * appointed to represent an indigent applicant 

may withdraw from that representation when it becomes clear, after a reasonable investigation, 

that some or all of the applicant’s claims lack merit.” (emphasis added)).

 23 Indeed, when Reyes expressed some confusion about whether postconviction counsel 

represented him or the state, the hearing justice promptly reassured him that postconviction 

counsel was his attorney.
- 22 -

Reyes’s complaint about postconviction counsel’s failure to discuss the case with trial 

counsel or review his files similarly misses the mark. In his no-merit memorandum, 

postconviction counsel focused on Reyes’s inability to establish prejudice because of the 

favorable disposition that trial counsel secured for his client. Postconviction counsel noted that, 

in marked contrast to the potential for significant jail time that Reyes faced if convicted on the 

original charges, trial counsel was able to persuade the state to dismiss one charge, amend the 

other charge to a lesser offense, agree to a non-incarcerative sentence, and refrain from 

presenting Reyes as a probation violator. While Reyes was insisting that exculpatory testimony

mirroring the allegations in the Cepeda statement was given at his bail hearing, postconviction 

counsel had expended considerable effort to locate this alleged bail-hearing testimony to no 

avail, and the hearing justice appropriately concluded that “there was no testimony given under 

oath exonerating [Reyes in] this matter.” Thus, Reyes’s claim attacking postconviction counsel’s 

alleged shortcomings is without merit. 

Finally, it is significant that, pursuant to Shatney, 755 A.2d at 135, postconviction 

counsel filed a comprehensive memorandum in which he—as Reyes acknowledged at the 

hearing on the motion to withdraw—correctly identified each of the many claims asserted in 

Reyes’s application and thoroughly explained the reasons why, in counsel’s professional 

opinion, they lacked merit. On appeal, Reyes complains that postconviction counsel failed to 

narrow or reframe the claims contained in his application, but appellate counsel similarly makes 

no effort to articulate how those claims could have been reworked, and an attorney will not 

always be able to salvage a meritless application from the scrap heap. Cf. Campbell, 56 A.3d at 

458 (explaining that “appointed counsel may, in an appropriate case, frame the applicant’s 

claims in such a way as to avoid § 10-9.1-8’s waiver rule”). We note that a tension is 
- 23 -

unavoidable in cases in which the Shatney procedure is invoked. Our decisions in Campbell and 

Shatney recognize that, in some cases, appointed counsel’s efforts must, at some point, shift from 

diligent investigation and meaningful representation to dispassionate explanation of why, in the 

exercise of counsel’s professional judgment, the claims lack merit. See Campbell, 56 A.3d at 

455-56; Shatney, 755 A.2d at 135. Importantly, this is a case where the paradigm shift properly

occurred, whereas Campbell involved a situation where counsel acted as an objective, 

independent, and dispassionate outsider from the outset.

For these reasons, we conclude that postconviction counsel functioned as Reyes’s 

attorney and, because he deemed Reyes’s application to be meritless based on the record that 

existed at that time, he complied with the procedure outlined in Shatney. See Shatney, 755 A.2d 

at 135. Similarly, the hearing justice complied with our directive in Shatney that a hearing be 

held at which Reyes was able to respond to the no-merit memorandum, and, at the conclusion of 

the hearing, she appropriately granted the motion to withdraw.24 See id. 

Although we affirm the hearing justice’s decision to allow postconviction counsel to 

withdraw, we nonetheless pause to remind the bench and the bar that the Shatney procedure is 

not the endgame. An attorney is not appointed under § 10-9.1-5 to perform a screening function 

or to steer the case towards the filing of a no-merit memorandum and then withdraw from the 

arena. Rather, § 10-9.1-5 directs that an attorney be appointed to represent the applicant in 

connection with the litigation of his or her application, see Campbell, 56 A.3d at 454-56, 461,

 24 The dissent states that it is “compelled to express [its] belief that the time has come to abrogate 

Shatney, at least as it relates to first-time applicants.” As the dissent recognizes, however,

“Shatney’s life expectancy was not addressed by the parties in this case[,]” and, thus, is not 

before this Court. We agree that this issue is not before us, and decline to address it further. The 

hearing justice and postconviction counsel properly followed the Shatney procedure, which was 

the law at the time of the hearings below and the time the appeal was taken, and which continues 

to be the law today. 
- 24 -

and the Shatney procedure is a judicially created escape hatch to be opened only in those cases 

where the appointed attorney’s obligations under Rule 11 require withdrawal because the only 

alternative, in counsel’s professional opinion, is the impermissible pursuit of irremediably

frivolous claims.25

IV

Conclusion

For the reasons articulated above, we affirm the judgment summarily dismissing Reyes’s 

application. The papers may be remanded to the Superior Court.

26

 25 We reiterate that an attorney’s reluctance or refusal to accept an appointment “is not embraced 

by the dictates of Shatney * * *, and the fact that counsel may decline the appointment should 

not result in the summary dismissal of an applicant’s claims absent compliance with § 10-9.1-5.” 

Campbell, 56 A.3d at 456 n.5; see also Shatney, 755 A.2d at 136 (“The appointment of 

Shatney’s first counsel, who then limited her entry of appearance and apparently declined to 

pursue the application and/or withdrew before pursuing petitioner’s claim, before the court 

allowed her to withdraw, and before the court passed on the alleged lack of merit of such an 

application, did not fulfill the requirements of § 10-9.1-5 in this case.”). 26 Notwithstanding the state’s failure to raise the doctrine of laches before the hearing justice, the 

state argued in its papers to this Court that review of that issue “is not necessarily foreclosed.” At 

oral argument, however, the state conceded that, because this affirmative defense was not raised 

below, it has been waived. This concession is well-taken. See Andrukiewicz v. Andrukiewicz, 

860 A.2d 235, 241 (R.I. 2004) (holding that the plaintiff failed to preserve defense of laches for 

appellate review where the plaintiff failed to raise it before the trial justice).
- 25 -

 

Justice Goldberg, with whom the Chief Justice joins, concurring in part and 

dissenting in part. I join the majority’s well-written opinion clarifying this Court’s standard of 

review of a hearing justice’s summary dismissal of an applicant’s postconviction-relief (PCR) 

application and its affirmance of the hearing justice’s summary dismissal of Reyes’s claim that 

his 1994 nolo contendere plea violated Rule 11 of the Superior Court Rules of Criminal 

Procedure and was not knowing, intelligent, and voluntary.1

 I also unhesitatingly join the 

majority’s insightful decision to abrogate the farce-and-mockery language of State v. Dunn, 726 

A.2d 1142, 1146 n.4 (R.I. 1999), and its progeny and to reiterate that Rhode Island is, 

henceforth, a strictly Strickland2 jurisdiction with respect to claims of ineffective assistance of 

counsel.

I part company with my colleagues, however, on the issue of whether the hearing 

justice’s summary dismissal of Reyes’s claims of ineffective assistance of counsel was proper. 

These claims alleged violations of a fundamental constitutional right. This first PCR application 

 1 I note that I am not convinced that the trial justice properly concluded that there was a 

sufficient factual basis for the plea—a requirement of Rule 11 of the Superior Court Rules of 

Criminal Procedure. However, Reyes’s argument on appeal focused exclusively on the trial 

justice’s failure to appoint an interpreter sua sponte. Apart from one sentence in his show-cause 

statement in which he asserted “there is neither a discussion of Mr. Reyes’[s] role in the 

amended charge of maintaining a narcotics nuisance, nor of his understanding of that charge,” 

the entirety of his argument on appeal concerns the failure to appoint an interpreter. In my 

opinion, this single sentence fails to adequately develop—and, therefore, preserve for this 

Court’s review—any argument concerning the lack of factual basis for the plea. See McMahon 

v. Deutsche Bank National Trust Co., 131 A.3d 175, 176-77 (R.I. 2016) (mem.); see also United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to mention a possible 

argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for 

the argument, and put flesh on its bones. * * * ‘[A] litigant has an obligation to spell out its 

arguments squarely and distinctly, or else forever hold its peace.’” (quoting Rivera-Gomez v. de 

Castro, 843 F.2d 631, 635 (1st Cir. 1988)). 

2 Strickland v. Washington, 466 U.S. 688 (1984).
- 26 -

was Reyes’s one and only chance to assert these claims. The attorney who was appointed to 

represent Reyes concluded—without conferring with Reyes’s trial counsel—that these claims 

lacked merit. This determination was premature. Reyes was then forced to represent himself 

and was instructed by the hearing justice to come forward with “something of great 

significance.” He did so. Reyes presented the hearing justice with the Cepeda statement before 

the state filed its motion for summary dismissal under G.L. 1956 § 10-9.1-6(c). Although the 

majority claims that the Cepeda statement is “riddled with maladies,” all of the supposed 

“maladies” stem from one aspect of the statement: The registered notary public took the 

statement over the telephone and notarized it, rather than having Ismael Cepeda (Cepeda) swear 

to its contents in his presence.3

 The hearing justice considered the Cepeda statement and 

nonetheless summarily dismissed Reyes’s ineffectiveness claims. 

In concluding that the hearing justice was “barred” from considering the Cepeda 

statement, the majority overlooks four critical facts. First, Reyes was forced to proceed pro se

after postconviction counsel, who was statutorily required to represent him zealously, jumped 

ship long before Rule 11 of the Superior Court Rules of Civil Procedure required such a drastic 

course of action. Second, the Cepeda statement—which the majority analyzes as if it were a 

document submitted in opposition to a summary-judgment motion—was submitted before the 

state moved for summary dismissal under § 10-9.1-6(c). Third, the state did not coherently raise 

any argument that the hearing justice was barred from considering this document at the 

summary-dismissal stage, nor did the hearing justice hold that she was so constrained. Fourth, 

the “maladies” of which the majority complains were caused by the actions of the notary and not

by Reyes, who remained in prison, stripped of counsel and forced to proceed pro se. In my 

 3 A copy of the Cepeda statement is appended to this opinion. The notary seal is visible in a 

copy of the statement in the lower-court file.
- 27 -

opinion, summary dismissal of these claims was improper; an evidentiary hearing, at which 

Reyes would have been accorded his right to counsel, was required. Therefore, I respectfully 

dissent and express my concern about the posture the majority has taken in this appeal.

Timing and Nature of Claims of Ineffective Assistance of Counsel

In this jurisdiction, a claim of ineffective assistance of counsel ordinarily cannot be 

addressed by this Court on direct appeal; instead, such claims must be asserted in a PCR 

application.4

 See State v. Brouillard, 745 A.2d 759, 768 (R.I. 2000). At the same time, the 

statutory framework governing the PCR context mandates that, in most cases, an applicant will 

have but one opportunity to press a claim for postconviction relief. Section 10-9.1-8 provides 

that:

“All grounds for relief available to an applicant at the time 

he or she commences a proceeding under this chapter must be 

raised in his or her original, or a supplemental or amended, 

application. Any ground finally adjudicated or not so raised, or 

knowingly, voluntarily and intelligently waived in the proceeding 

that resulted in the conviction or sentence or in any other 

proceeding the applicant has taken to secure relief, may not be the 

basis for a subsequent application, unless the court finds that in the 

interest of justice the applicant should be permitted to assert such a 

ground for relief.”

 

 4 A narrow exception to this general rule exists where the claim is based on a “specific, 

reviewable ruling” by the trial justice. State v. Pineda, 13 A.3d 623, 635 (R.I. 2011). It is the 

rare case in which this exception applies. 
- 28 -

The upshot is that, in this jurisdiction, a criminal defendant has one and only one opportunity to 

assert a claim for ineffective assistance of counsel, and that opportunity almost always must 

occur in the PCR context. See Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012) (explaining that, 

when claims of ineffective assistance of counsel can be raised only in a collateral proceeding, 

such as the PCR context in this state, “the initial-review collateral proceeding [is] a prisoner’s 

‘one and only appeal’ as to an ineffective-assistance claim”).

Compounding matters, a claim alleging ineffective assistance of counsel is of paramount 

importance. As the United States Supreme Court has explained, “[t]he right to the effective 

assistance of counsel at trial is a bedrock principle in our justice system” and “the foundation for 

our adversary system.” Martinez, 132 S. Ct. at 1317. For this reason, it is critical that a PCR 

applicant be afforded a meaningful opportunity to vindicate such a claim. As the Supreme Court 

has suggested, such an opportunity may require effective assistance of counsel in the PCR 

context:

“Without the help of an adequate attorney, a prisoner will have 

* * * difficulties vindicating a substantial ineffective-assistance-oftrial-counsel claim. Claims of ineffective assistance at trial often 

require investigative work and an understanding of trial strategy. 

When the issue cannot be raised on direct review, moreover, a 

prisoner asserting an ineffective-assistance-of-trial-counsel claim 

in an initial-review collateral proceeding cannot rely on a court 

opinion or the prior work of an attorney addressing that claim. 

* * * To present a claim of ineffective assistance at trial in 

accordance with the [s]tate’s procedures, then, a prisoner likely 

needs an effective attorney.” Id. 

The majority concludes—correctly, in my opinion—that this case does not present the question 

of whether the United States Constitution requires that a PCR applicant asserting a claim of 

ineffective assistance of counsel be afforded effective assistance of counsel in the PCR context. 

See id. at 1315 (noting this open question). However, Martinez instructs that a claim of 
- 29 -

ineffective assistance of counsel cannot be given short shrift merely because it is asserted for the 

first time in the PCR context and not on direct appeal. To the contrary, the claim must receive 

serious consideration.5

Postconviction Counsel’s Compliance with § 10-9.1-5

The General Assembly has mandated that:

“An applicant who is indigent shall be entitled to be 

represented by the public defender. If the public defender is 

excused from representing the applicant because of a conflict of 

interest or is otherwise unable to provide representation, the court 

shall assign counsel to represent the applicant.” Section 10-9.1-5.

This unambiguous statutory text contains no exception: A PCR applicant has the unqualified 

statutory right to appointed counsel who “represent[s] the applicant.” Id.

This Court, however, has qualified and cabined a PCR applicant’s right to counsel. In 

Shatney v. State, 755 A.2d 130, 135 (R.I. 2000), this Court “established a procedure by which an 

attorney * * * who has been appointed to represent an applicant for postconviction relief may 

 5 During one of the hearings in this case, the following exchange transpired between the hearing 

justice and Reyes:

“[THE COURT:] * * * Now, sir, I also have to note that you are doing a 

life sentence for a separate offense.

“THE DEFENDANT: Yes.

“THE COURT: Why are we going through this exercise?

“THE DEFENDANT: Based on this case, I got a different sentence in the 

other case, habitual.

“THE COURT: But you’re still doing two life sentences.”

The length of the sentences that Reyes may have received in other, unrelated cases was, of 

course, utterly irrelevant to the merits of Reyes’s claims of ineffective assistance of counsel. 

These claimed violations of Reyes’s fundamental constitutional right warranted careful 

consideration.
- 30 -

later seek to withdraw from that representation under specific and limited circumstances.” 

Campbell v. State, 56 A.3d 448, 455 (R.I. 2012). In broad strokes, Shatney allows an applicant’s 

appointed counsel to withdraw after filing a so-called “no-merit” memorandum containing a 

description of the extent of counsel’s review of the case and an explanation of why the issues 

raised in the application lack merit. Shatney, 755 A.2d at 135. At that point, the hearing justice 

is obligated to conduct a hearing in the applicant’s presence. Id. If the hearing justice agrees 

that the claims “lack any arguable merit,” the motion to withdraw may be granted, and the 

applicant is advised of the right to proceed pro se. Id. (emphasis added).

As aptly set forth by the majority, the Shatney procedure represents nothing more than “a 

judicially created escape hatch” available only when continued litigation of the PCR application 

would violate Rule 11 of the Superior Court Rules of Civil Procedure. See Campbell, 56 A.3d at 

455-56 (“The procedure set forth in Shatney simply applies Rule 11’s proviso to the context of 

the postconviction remedy, such that an attorney * * * appointed to represent an indigent 

applicant may withdraw from that representation when it becomes clear, after a reasonable 

investigation, that some or all of the applicant’s claims lack merit.”). In other words, Shatney

was not meant to water down the quality or extent of the legal representation that § 10-9.1-5 

clearly grants to an indigent PCR applicant. 

In the sixteen years since Shatney was decided, the procedures that have arisen scarcely 

resemble what was envisioned by the Shatney Court. A veritable cottage industry has arisen 

whereby court-appointed lawyers are proceeding as if charged with screening out meritless 

applications for the ax of summary dismissal. Along the way, Shatney has been transmuted from 

an interpretive effort to achieve coexistence between § 10-9.1-5 and Rule 11 into a high hurdle 

that PCR applicants must surmount in order to receive serious consideration of their claims on 
- 31 -

the merits. Our decision in Campbell, which the majority characterizes as the most egregious 

example of how Shatney has evolved, is by no means an outlier. See, e.g., Garcia v. State, 91 

A.3d 359, 359-60 (R.I. 2014) (mem.); Motyka v. State, 91 A.3d 351, 351-52 (R.I. 2014) (mem.); 

Ramirez v. State, 89 A.3d 836, 838-40 (R.I. 2014); Rodriguez v. State, 86 A.3d 393, 393 (R.I. 

2014) (mem.); Fortes v. State, 65 A.3d 478, 478 (R.I. 2013) (mem.). This Court’s concerns 

about the denial of the right to counsel and an evidentiary hearing have caused us to modify 

Shatney’s application to cases involving life without parole. See Tassone v. State, 42 A.3d 1277, 

1287 (R.I. 2012). I am compelled to express my belief that the time has come to abrogate 

Shatney, at least as it relates to first-time applicants.6 See Campbell, 56 A.3d at 458-59 

(explaining important distinction between first application and subsequent applications with 

respect to right to appointed counsel under § 10-9.1-5).

I am mindful, however, that Shatney’s life expectancy was not addressed by the parties in 

this case. I therefore proceed to analyze postconviction counsel’s efforts under the existing 

regime, such as it is. In my opinion, the hearing justice erred in permitting postconviction 

counsel to withdraw pursuant to Shatney and in failing to reappoint counsel after the Cepeda 

statement was produced.7 In order to conclude that Rule 11 required him to withdraw under the 

Shatney procedure, postconviction counsel must have reached the point that, in his opinion, 

Reyes’s claims were not “well grounded in fact and * * * warranted by existing law or a 

good[-]faith argument for the extension, modification, or reversal of existing law.” Rule 11 of 

 6 As a member of the Shatney Court, I can state with confidence that “‘[t]he matter does not 

appear to me now as it appears to have appeared to me then.’” McGrath v. Kristensen, 340 U.S. 

162, 178 (1950) (Jackson, J., concurring).

7 Following the majority’s lead, I refer to the attorney who represented Reyes in connection with 

his 1994 plea of nolo contendere as “trial counsel,” and the attorney who purported to represent 

him in connection with his PCR application as “postconviction counsel.”
- 32 -

the Superior Court Rules of Civil Procedure. In his no-merit memorandum, postconviction 

counsel concluded that Reyes’s claims of ineffective assistance of counsel were meritless 

because Reyes could not satisfy either the performance or prejudice prong of Strickland. In my 

opinion, postconviction counsel’s efforts on Reyes’s behalf were insufficient to justify this 

conclusion. Indeed, postconviction counsel did not even speak with trial counsel. 

Assessment of whether an alleged ground of ineffective assistance of counsel meets the 

performance and prejudice prongs is a case-specific inquiry. In the past, this Court has not 

hesitated to vacate the summary dismissal of an applicant’s claims of ineffectiveness where the 

record did not clearly support the conclusion that one of the prongs had not been met. See, e.g., 

Tassone, 42 A.3d at 1286 (“[T]he absence of a transcript, coupled with the lack of an evidentiary 

hearing, precluded the court from conducting an adequate, independent review of trial counsel’s 

actions and from ‘look[ing] at the entire performance of counsel.’ * * * No evidentiary hearing 

was conducted to explore the validity of [the] applicant’s arguments, thus leaving unexamined 

the foundation for a ‘reasonable probability’ that[,] but for trial counsel’s errors, the result of the 

proceeding would have been different.” (quoting Brown v. State, 964 A.2d 516, 528 (R.I.

2009))); Hughes v. State, 609 A.2d 943, 944 (R.I. 1992) (“No evidentiary hearing was conducted 

to explore the validity of [the applicant’s ineffective-assistance-of-counsel] claims, thus leaving 

unexamined the foundation for a ‘reasonable probability[]’ [under the prejudice prong of 

Strickland]. The trial justice’s ruling at the [PCR] hearing that he was satisfied that [the 

applicant] had failed to meet the necessary standards for relief under Strickland * * * was 

unfounded without an evidentiary hearing to buttress his conclusion.”); see also Randall v. State, 

609 A.2d 949, 950 (R.I. 1992) (“Since a claim of ineffective assistance of counsel raises 

questions of fact, disposition of such a case by way of summary judgment is not possible.”).
- 33 -

In my view, postconviction counsel was overeager in labeling Reyes’s claims as 

meritless. Critically, Reyes’s 1994 conviction resulted from a plea of nolo contendere in the 

Superior Court to an amended charge of maintaining a narcotics nuisance. Because there was no 

trial, a trial transcript from which an assessment of trial counsel’s efforts can be made is not 

available. Cf. State v. D’Alo, 477 A.2d 89, 91 (R.I. 1984) (“In determining whether a trial 

counsel’s performance was effective, no evidence is more probative than the trial transcript, for 

through the transcript a trial justice hearing a petition for postconviction relief can observe, albeit 

second-hand, what actually happened as far as the trial counsel’s actions are concerned. 

Accordingly, the trial justice hearing the petition in the present case had sufficient evidence 

before him to assess the performance of [the] defendant’s trial counsel.”). Although the fourpage transcript of the change-of-plea colloquy was attached to Reyes’s PCR application, the vast 

majority of Reyes’s claims of ineffective assistance of counsel had nothing to do with trial 

counsel’s actions or inactions at the plea hearing. The transcript sheds no light on the 

reasonableness of trial counsel’s performance with respect to these allegations of ineffectiveness. 

Notwithstanding this deficiency, postconviction counsel elected not to confer, in any way, with 

trial counsel. Even more remarkably, he concluded that Reyes failed to satisfy the performance 

and prejudice prongs. In doing so, postconviction counsel failed to function as Reyes’s attorney. 

For starters, he made unfounded assumptions regarding trial counsel’s performance and 

overlooked the fact that it was his job—in the course of fulfilling his duty to represent Reyes 

zealously—to determine if a nonfrivolous argument could be asserted that trial counsel’s 

performance was unreasonable. “[A] fair assessment of attorney performance requires that every 

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the 
- 34 -

time.” Lynch v. State, 13 A.3d 603, 606 (R.I. 2011) (quoting Strickland v. Washington, 466 

U.S. 668, 689 (1984)) (emphasis added). By failing to even speak with trial counsel, 

postconviction counsel wholly failed to perform this fair assessment. Instead, he simply 

assumed that trial counsel rendered effective assistance. For example, he speculated that trial 

counsel “had a good understanding as to the state of the evidence against his client.” How do we 

know that from this record? Likewise, he stated that trial counsel “was not provided concrete 

information that there was additional exculpatory evidence other than what already existed.” I 

see no evidentiary support for this statement in the record. The undeniable fact that 

postconviction counsel simply was assuming away the critical issue of whether trial counsel’s 

performance violated the Strickland standard is evident from the following passage of his nomerit memorandum:

“In the absence of any evidence to the contrary, it is fair to 

assume that Reyes’[s] counsel complied with his responsibilities as 

an attorney concerning open and honest communications with his 

client, and that he communicated with his client in a means 

efficient enough so that they had meaningful discussions regarding 

the case.” (Emphasis added.) 

Fair to whom? Certainly not to Reyes, his client, who was owed a duty of zealous advocacy. In 

the absence of at least a conversation with trial counsel, postconviction counsel’s conclusion that 

Reyes’s claims were meritless must be recognized for what it is: a premature effort to withdraw 

from the case.8

 Cf. Tassone, 42 A.3d at 1286 (“[T]he absence of a transcript, coupled with the 

 8 These are not merely isolated passages in postconviction counsel’s no-merit memorandum. 

Rather, the notion that trial counsel must have rendered effective assistance of counsel is a theme 

that permeates the entirety of the memorandum. See, e.g., Postconviction Counsel’s No-Merit 

Memorandum at 25 (“[Reyes] was represented by very competent defense counsel who 

obviously did not feel that the services of an interpreter were necessary in order for his client to 

understand the plea colloquy with the [c]ourt.” (emphasis added)); id. at 15 (“Reyes has not 

presented any evidence to prove that his attorney acted in anything other than a competent 

manner.”); id. at 19 (“In and [of] itself[, trial counsel’s failure to file a pretrial discovery motion] 
- 35 -

lack of an evidentiary hearing, precluded the court from conducting an adequate, independent 

review of trial counsel’s actions and from ‘look[ing] at the entire performance of counsel.’” 

(quoting Brown, 964 A.2d at 528)).

At the hearing on the motion to withdraw, postconviction counsel explained that he “did 

not feel it was necessary to speak to [trial counsel]” because he concluded that Reyes entered 

into a knowing and voluntary plea. However, the fact that the 1994 plea may have been 

voluntary, knowing, and intelligent does not bar claims of ineffective assistance of counsel 

relating to trial counsel’s advice leading to the decision to enter the plea. See State v. Dufresne, 

436 A.2d 720, 722, 723 (R.I. 1981) (“The focus of a postconviction inquiry when there has been 

a guilty plea is the nature of counsel’s advice concerning the plea and the voluntariness of the 

plea. * * * A defendant who pleads guilty on the advice of counsel must demonstrate at his 

postconviction hearing that that advice was not within the range of competence demanded of 

attorneys in criminal cases.”). Reyes’s claims attack the effectiveness of trial counsel in advising 

him to enter a plea of nolo contendere. Therefore, the fact that Reyes’s plea was otherwise 

voluntary, knowing, and intelligent was no excuse for postconviction counsel’s failure to speak 

with trial counsel.

Postconviction counsel alluded to a second reason for not interviewing trial counsel: that, 

irrespective of whether Reyes could satisfy the performance prong, he was unable to satisfy the 

 

does not mean that counsel was anything less than diligent in his representation of [Reyes]; there 

are many reasons why counsel might elect not to file for discovery. In many cases, it is because 

counsel might not want to file an Answer to the State’s Motion for Reciprocal Discovery, 

thereby having to give to the [s]tate any evidence that they might not want to divulge.”

(emphases added)); id. at 9 (“I should point out that the defense counsel in this case was, and is, 

a very experienced and respected member of the defense bar who has represented hundreds of 

criminal defendants in all levels of the judicial system, both [s]tate and [f]ederal. He enjoys a 

well-deserved reputation as a hard[]working, top-notch criminal defense attorney who is not 

afraid to try a case in front of a jury.”); id. at 28 (“It is difficult to second guess the work of an 

attorney when there was a negotiated plea.”). 
- 36 -

prejudice prong because of the highly favorable disposition of the charges. To be sure, this 

Court previously has explained that, “when counsel has secured a shorter sentence than what the 

defendant could have received had he gone to trial, the defendant has an almost insurmountable 

burden to establish prejudice.” Neufville v. State, 13 A.3d 607, 614 (R.I. 2011). The assessment 

of the strength of a negotiated agreement, however, cannot occur in a vacuum. The need for a 

conversation with trial counsel flows in no small part from the unique relationship between the 

facts of this case and the amended charge to which Reyes pled. Anyone familiar with the 

disposition of criminal cases in this state would recognize that the plea agreement in this case—

in which, based on a single delivery of heroin, a two-count criminal information charging 

distribution of heroin within three hundred yards of a school and conspiracy to commit that 

offense was amended to a single count of maintaining a narcotics nuisance—was not a typical 

disposition. A conviction for maintaining a narcotics nuisance under G.L. 1956 § 21-28-

4.06(b)(1)(a) requires proof of “acts [that] are recurrent or of [a] habitual nature”; a single drug 

transaction is an insufficient basis upon which to convict for this offense. State v. Reis, 430 

A.2d 749, 753 (R.I. 1981); see id. at 754 (“[Section] 21-28-4.06 requires a showing of more than 

an isolated instance of the prohibited activity.”); see also id. at 753, 754 (reversing the 

defendant’s convictions for maintaining a narcotics nuisance where “[t]here was absolutely no 

evidence, apart from this single incident, that [the] defendant used his apartment or his car for the 

unlawful keeping or sale of a controlled substance.” (emphasis added)). Accordingly, the single 

drug buy set forth in the criminal information was insufficient as a matter of law to constitute the 

offense of maintaining a narcotics nuisance. This fact should have alerted postconviction 

counsel of the need to consult trial counsel. 
- 37 -

The disposition in this case might have been highly favorable if the state’s evidence was 

strong and Reyes had little in the way of a defense. On the other hand, the negotiated plea

agreement appears less favorable if the state’s evidence was weak, Cepeda is deemed a credible 

witness, and exculpatory evidence exists and is sufficiently persuasive to create a reasonable 

probability that the outcome of the trial would have been an acquittal. When compared to an 

acquittal, the disposition in this case—even without jail time—loses much of its luster; it 

operated as a felony conviction, it carried a term of probation (the violation of the terms and 

conditions of which landed Reyes in prison), and it served as one of the predicate offenses that 

qualified Reyes as a habitual offender. It is therefore unsurprising that the assessment of the 

strength of the disposition in relation to the prejudice prong of Strickland is not often made at the 

summary-dismissal stage. See Neufville, 13 A.3d at 611, 614 (commenting on the effect of a 

shorter sentence on the prejudice prong in a case where an evidentiary hearing was held and 

findings of fact were made); Rodrigues v. State, 985 A.2d 311, 316, 317 (R.I. 2009) (similar); 

Hassett v. State, 899 A.2d 430, 436-37 (R.I. 2006) (similar); cf. Tassone, 42 A.3d at 1286 (“No 

evidentiary hearing was conducted to explore the validity of [the] applicant’s arguments, thus 

leaving unexamined the foundation for a ‘reasonable probability’ that[,] but for trial counsel’s 

errors, the result of the proceeding would have been different.”). Consequently, postconviction 

counsel’s premature assessment of the strength of the disposition did not justify his failure to 

interview trial counsel. 

In granting postconviction counsel’s motion to withdraw, the hearing justice failed to set 

forth her reasons for accepting his assessment of Reyes’s claims as meritless. Indeed, the 

hearing justice notified Reyes that she was “not determining whether or not there’s merit to your 

case.” (Emphasis added.) This is error. There is no showing on this record that the hearing 
- 38 -

justice conducted the independent review that Shatney requires as a prerequisite to permitting 

counsel to withdraw; in fact, she declared just the opposite. See Shatney, 755 A.2d at 135 (“If, 

based upon its review of counsel’s assessment of the potential grounds for seeking 

post[]conviction relief and of any other issues that the applicant wishes to raise, the court agrees 

that those grounds appear to lack any arguable merit, then it shall permit counsel to withdraw 

* * *.” (emphases added)). Without a finding that the grounds set forth in the application lack 

any arguable merit—which, in my opinion, could not be made when no effort was made to 

contact trial counsel—the hearing justice should not have permitted postconviction counsel to 

withdraw.

In sum, postconviction counsel failed to appreciate his role as Reyes’s attorney, and the 

hearing justice erroneously granted him a free pass in permitting him to withdraw from the 

representation. This case is yet another example of the injustice that can accompany the Shatney

procedure, which operates simultaneously as an additional court-made hurdle for PCR applicants 

to overcome and a mechanism for less-than-full-fledged representation of indigent applicants. 

Indeed, had Reyes received the counsel envisioned by § 10-9.1-5—to which he was undeniably 

entitled—his counsel likely would have recognized the “maladies” of the Cepeda statement and 

rectified them to ensure that Reyes received full and fair consideration of his constitutional 

claims. 

Consideration of the Cepeda Statement

The hearing justice’s error in granting postconviction counsel’s motion to withdraw, 

standing alone, supplies adequate and persuasive grounds to vacate the summary dismissal of 

Reyes’s claims of ineffective assistance of counsel. Nonetheless, I proceed to note my 
- 39 -

disagreement with the majority’s incongruous decision to affirm the hearing justice’s summary 

dismissal of the application on the ground that she erred in considering the Cepeda statement.

Immediately after the hearing justice granted postconviction counsel’s motion to 

withdraw, Reyes moved for funds to hire a private investigator. Reyes explained that, because 

“the records [of the alleged exculpatory testimony of one of his accomplices] are nowhere to be 

found,” “the investigator would only need to get the testimony from the witness.” The hearing 

justice denied the motion. She then warned Reyes that, “unless there is something of great 

significance in your memorandum that persuades the [c]ourt that you would have gone to trial 

and the result would have been different, then the [c]ourt may very well be dismissing your 

case.”

Against all odds, Reyes—who remained incarcerated, indigent, and uncounseled—

persuaded Nicholas Cardarelli (Cardarelli), a private investigator and notary public in this state, 

to work on his behalf in an effort to come forward with “something of great significance.” He 

did so. Cardarelli tracked down Cepeda and took a statement from him that directly bears on the 

question of Reyes’s innocence. Reyes produced the Cepeda statement at the next hearing, before

the state filed—at the hearing justice’s suggestion—its motion for summary dismissal under § 

10-9.1-6(c). Although noting certain “infirmities” of the Cepeda statement, the hearing justice 

explicitly considered it: “On the basis then of the application, all of the materials that have been 

submitted, including, for what it’s worth, the statement by Mr. Cepeda, that is not a sworn 

statement or an affidavit by Mr. Cepeda, the [c]ourt finds that there is no need to proceed 

further.” (Emphasis added.) The majority declares that the hearing justice erred in considering 

the statement because it concludes that the Cepeda statement “is riddled with maladies that 
- 40 -

barred it from the hearing justice’s consideration on summary dismissal.” In my opinion, this 

conclusion is erroneous on at least three independent grounds. 

First, the majority treats the Cepeda statement as if it were submitted in opposition to the 

state’s summary-dismissal motion. It was not. The Cepeda statement was submitted in response 

to the hearing justice’s notice, required by statute, of her intention to dismiss Reyes’s application 

and her corresponding warning that she would dismiss the application unless Reyes came 

forward with “something of great significance.” See § 10-9.1-6(b) (“When a court is satisfied, 

on the basis of the application, the answer or motion, and the record, that the applicant is not 

entitled to post[]conviction relief and no purpose would be served by any further proceedings, it 

may indicate to the parties its intention to dismiss the application and its reasons for so doing.”). 

At the time that Reyes produced the Cepeda statement, the state’s motion for summary dismissal 

under § 10-9.1-6(c) had not yet been filed. Therefore, the majority’s conclusion that the Cepeda 

statement could not be considered by the hearing justice because it is not the type of admissible 

evidence that can competently defeat a summary-dismissal motion flows from an erroneous 

starting premise. 

Because the Cepeda statement was submitted in response to the hearing justice’s notice 

of proposed dismissal under § 10-9.1-6(b), that statutory section—and not the requirements of 

Rule 56(e) of the Superior Court Rules of Civil Procedure and this Court’s summary-judgment 

case law—governs its consideration. In my opinion, the hearing justice, after reviewing the 

Cepeda statement (which exculpates Reyes), should have realized her mistake in allowing 

postconviction counsel to withdraw and directed that further proceedings occur at which—at a 

minimum—Reyes would be provided with an attorney willing to confer with trial counsel or 

with a view toward securing his testimony at an evidentiary hearing. See § 10-9.1-6(b) (“The 
- 41 -

applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, 

or on default thereof, the court may order the application dismissed or grant leave to file an 

amended application or direct that the proceedings otherwise continue.” (emphases added)). 

Instead, the hearing justice invited the state to file a motion for summary judgment, considered 

the Cepeda statement, and concluded—erroneously, in my view, see infra—that it was irrelevant. 

The hearing justice’s authority to consider the Cepeda statement was not restricted by this 

Court’s summary-judgment jurisprudence because the state had not yet proceeded down that 

path. 

Second, neither the state nor the hearing justice warned Reyes that the Cepeda statement 

could be rejected on the basis of the so-called maladies until, if at all, the very hearing at which 

his PCR application was summarily dismissed. The majority overlooks this aspect of the 

proceeding. When Reyes first produced the Cepeda statement, the hearing justice did not, in any 

way, suggest that it could be rejected on the basis of any defects; instead, she indicated that it 

might not be relevant. Nor did the state advocate rejection of the statement based on its defects. 

Instead, the state devoted a single paragraph to the Cepeda statement and proffered a merits 

argument:

“As to the second document, the purported[ly] notarized 

(document does not contain a notary’s seal or Mr. Cepeda’s 

signature) statement of Ismael Cepeda, the [s]tate cannot speculate 

as to the purpose of this document. Mr. Cepeda testified at 

[Reyes]’s bail hearing, well prior to the resolution of the instant 

case (and, in fact, before [Reyes]’s charges were amended pursuant 

to his attorney’s negotiations). Mr. Cepeda is not a ‘previously 

unknown’ witness, nor, by his own account, is Mr. Cepeda’s 

statement different from that which he testified to at the bail 

hearing. * * * Therefore, without further clarification, the [s]tate 

cannot adequately respond.” 

 
- 42 -

Nothing in the above-quoted passage puts Reyes on notice that the state was advocating outright 

rejection of the Cepeda statement.9

 A hearing was required at this point. 

In my opinion, the lack of any notice to Reyes is important in this case because he had no 

counsel and was expected to develop and litigate a fact-intensive claim concerning the 

deprivation of a fundamental constitutional right on his own, while incarcerated. Once forced to 

proceed pro se, Reyes ably attempted to address the concerns raised by the hearing justice and 

the state. When the hearing justice told him that he had better show her “something of great 

significance” or else face dismissal of his PCR application, Reyes produced the Cepeda 

statement. When the state argued that the Cepeda statement “does not contain a notary’s seal or 

Mr. Cepeda’s signature,” Reyes attempted to address that concern too, correctly pointing out in a 

supplemental memorandum that the document does, in fact, contain Cardarelli’s notary seal. 

Had Reyes been warned about the issues with the Cepeda statement before his application was 

summarily dismissed, he at least would have had an opportunity to remedy them. The hearing 

justice did not afford Reyes such an opportunity because she did not reject the document. Both 

Reyes and his appellate counsel have been blindsided in this Court—after oral argument—by the 

holding of the majority: that, contrary to the understanding of all involved, the hearing justice 

was “barred” from considering the Cepeda statement. 

 9 In fact, to the extent that the state intended to make such an argument, its attempt to do so was 

wholly ineffectual to preserve the argument for our review. Perhaps in light of its failure to 

preserve the argument that the Cepeda statement could not be considered by the hearing justice, 

the state on appeal simply highlights in a footnote the infirmities of the Cepeda statement that 

were noted by the hearing justice. To its credit, the state does not attempt to revive an argument 

that was not clearly and distinctly made below. The majority is raising sua sponte a ground of 

decision that was not addressed in the Superior Court. In my opinion, it is not the function of 

this Court to launch a rescue mission to resurrect an argument that was abandoned in the 

proceedings below. 
- 43 -

Finally, the majority improperly attributes to Reyes—an indigent prisoner forced to 

proceed pro se—the error of a registered notary public of this state that is squarely within the 

notary’s expertise.10 Under these circumstances, Reyes cannot be expected to recognize that the 

Cepeda statement was improperly notarized. This is a fiction that I refuse to embrace. The 

majority relies upon the notary’s mistake and, on that basis alone, has foreclosed consideration of 

the merits of Reyes’s claims that his fundamental constitutional right to effective assistance of 

counsel has been violated. This is not a just result.

For all of these reasons, I am of the opinion that the conclusion of the majority that the 

hearing justice was barred from considering the Cepeda statement was erroneous.

11

Relevancy of the Cepeda Statement

Finally, I note my disagreement with the hearing justice’s conclusion that the Cepeda 

statement was not relevant to the charge to which Reyes pled and her decision that summary 

dismissal of Reyes’s claims of ineffective assistance of counsel was proper because Reyes was 

unable to satisfy the prejudice prong of Strickland. Contrary to the hearing justice’s assessment, 

the Cepeda statement is relevant to the prejudice prong. It specifically relates to the criminal 

 10 The majority concedes that the Cepeda statement’s infirmities are the result “of the notary’s 

disregard for his duties.”

11 The majority charges me with “suggest[ing] that we turn both our existing postconviction 

relief case law and [G.L. 1956] § 10-9.1-6(c) on its head” and that “the system should bend over 

backwards for an applicant” in the circumstances of this case. In my opinion, postconviction 

counsel did not comply with § 10-9.1-5. Under “our existing [PCR] case law,” it was reversible 

error to enter a summary dismissal before Reyes received the assistance of counsel to which he 

was statutorily entitled. See Campbell v. State, 56 A.3d 448, 458-62 (R.I. 2012). To the extent 

that the system permits the summary dismissal of the ineffective-assistance-of-counsel claims of 

a first-time, pro se applicant who has been deprived of counsel and who nonetheless comes 

forward with evidence suggesting actual innocence, the system is broken. It should bend 

backwards, forwards, and every other conceivable way so that the applicant receives his day in 

court. To hold otherwise turns the postconviction remedy enacted by the General Assembly into 

an illusion. 
- 44 -

conduct giving rise to the offense to which Reyes entered a plea of nolo contendere. The 

statement of facts read in support of the amended charge was as follows: “Pedro [Reyes] on or 

about the 5th day of October 1993 at Central Falls in the County of Providence did maintain a 

narcotics nuisance in violation of the Rhode Island General Laws.” It is clear that the amended 

charge arose from his arrest and prosecution for the acts that gave rise to the two counts of the 

criminal information. Because the Cepeda statement concerns—and purports to absolve Reyes 

from—that conduct, it is relevant to the amended charge.12 

The Cepeda statement creates a genuine issue of fact as to whether at least one of Reyes’s 

codefendants in the 1994 case gave exculpatory testimony—during a bail hearing or elsewhere—

of which trial counsel knew or should have known. Maybe Cepeda did so testify. Maybe trial 

counsel discussed this circumstance with Cepeda and his client. Maybe the state amended the 

charges because of this circumstance. Postconviction counsel’s investigation indicated that the 

alleged exculpatory bail-hearing testimony did not exist. However, the Cepeda statement, 

although it does not specifically mention bail-hearing testimony, indicates that Cepeda gave 

testimony at a judicial proceeding that tended to exculpate Reyes from the charged offenses. 

Therefore, at the time that Reyes’s application was summarily dismissed, there was a genuine 

issue of fact as to whether Cepeda provided exculpatory evidence. See Bucci v. Hurd Buick 

Pontiac GMC Truck, LLC, 85 A.3d 1160, 1175 n.7 (R.I. 2014) (“A ‘genuine’ issue is one that 

 12 I also note that, even if the Cepeda statement related only to the original charges, it would still 

be relevant to the prejudice inquiry. In the plea context, the prejudice prong requires a defendant 

to “‘demonstrate a reasonable probability that[,] but for counsel’s errors, he or she would not 

have pleaded guilty [or nolo contendere] and would have insisted on going to trial’ and, 

importantly, that the outcome of the trial would have been different.” Neufville v. State, 13 A.3d 

607, 610-11 (R.I. 2011) (quoting State v. Figueroa, 639 A.2d 495, 500 (R.I. 1994)); see also

Lopes v. State, 111 A.3d 344, 349 (R.I. 2015). If trial counsel had advised Reyes not to enter 

his plea because of the exculpatory testimony of his codefendants, as Reyes alleges should have 

been done, and Reyes followed this advice, he presumably would have gone to trial on the 

original charges.
- 45 -

could be resolved in favor of either party * * *.” (quoting Calero-Cerezo v. United States 

Department of Justice, 355 F.3d 6, 19 (1st Cir. 2004))).

This genuine issue concerned a fact that is, at least at this early juncture, material to the 

prejudice inquiry. If the exculpatory testimony exists, it bears on the question of whether, if 

Reyes had proceeded to trial on the original charges, he would have been acquitted. From my 

review of the record, it appears that the only evidence linking Reyes to the charged offenses was 

Carl Barovier’s eyewitness identification of Reyes as the driver of the Datsun from which 

Cepeda emerged with heroin. There is no indication from the police reports that accompanied 

the criminal information that the driver ever exited the vehicle, nor is there information about the 

length of time that and the distance from which Barovier observed the driver, the lighting, his 

degree of certainty, or the time that elapsed before Barovier identified Reyes. Moreover, 

Barovier did not identify Reyes from a photo lineup; instead, when Edward Randall (Randall) 

provided Barovier a show-up photograph of Reyes—which Randall had selected based on 

Barovier’s description of the driver as having “light[-]black skin” and appearing to be 

“approximately 5’8” tall[ and] between 19 and 23 years of age”—Barovier identified him as the 

man he saw driving the vehicle.13 Contrary to the account that Barovier provided in the police 

reports, however, the Cepeda statement indicated that Reyes was not involved in the drug deal in 

question. In particular, the Cepeda statement asserts that Cepeda testified that he and Reyes did 

 13 Recently, this Court recognized “the problematic nature of eyewitness identification and its 

potential for misidentification,” State v. Davis, 131 A.3d 679, 696 (R.I. 2016), and “the growing 

concern in other jurisdictions with reliance on eyewitness identification testimony, the growing 

body of scientific and psychological studies regarding the questionable accuracy of the accounts 

of eyewitnesses, and the efforts made to prevent a miscarriage of justice,” id. at 696 n.13. We 

therefore announced that, henceforth, “the better practice would be for courts to provide the jury 

with more comprehensive instructions when eyewitness testimony is an issue, similar, for 

example, to those that were imparted in [State v. ]Austin, 114 A.3d [87,] 92-93 [(R.I. 2015),] and 

[State v. ]Figuereo, 31 A.3d [1283,] 1290-91 [(R.I. 2011)].” Davis, 131 A.3d at 697. 
- 46 -

not engage in drug transactions with one another as a general matter and that Reyes was not with 

him when he sold the heroin to Barovier. Therefore, because the Cepeda statement tended to 

discredit the accuracy of Barovier’s identification of Reyes, the existence of Cepeda’s 

exculpatory testimony is a material fact that potentially bears on the resolution of the question of 

whether, had Reyes gone to trial, “the outcome of the trial would have been different.” 

Neufville, 13 A.3d at 611; see Bucci, 85 A.3d at 1175 n.7 (“[A] ‘material fact’ is one that has the 

potential of affecting the outcome of the case.” (quoting Calero-Cerezo, 355 F.3d at 19)). 

Finally, I acknowledge that, even if Cepeda’s exculpatory testimony does exist, the 

prejudice prong of the Strickland standard would not necessarily be resolved in Reyes’s favor. 

To the contrary, several additional factors would first need to be considered, including an 

assessment of the circumstances under which the testimony was provided, Cepeda’s credibility 

(or lack thereof), and the strength of the state’s evidence against Reyes. In the end, Reyes would 

bear the burden of demonstrating the requisite prejudice.14 See Strickland, 466 U.S. at 693. But 

the genuine issue of material fact as to whether Cepeda provided exculpatory testimony—as well 

as the additional considerations that flow from the resolution of that issue—cannot and should 

 14 Even if Reyes were able to demonstrate prejudice under Strickland, he would still need to meet 

the performance prong to obtain postconviction relief. Additional questions would arise before 

trial counsel’s performance could be deemed deficient, such as whether trial counsel knew or 

should have known of the existence of the exculpatory testimony, cf. Neufville, 13 A.3d at 611-

12 (affirming the hearing justice’s rejection of the applicant’s claim that his trial counsel was 

ineffective because he failed to interview potential defense witnesses where, after an evidentiary 

hearing, the hearing justice supportably credited trial counsel’s testimony that the applicant never 

disclosed any potential witnesses over the applicant’s contrary testimony), and, if trial counsel 

had such actual or constructive knowledge, whether it was constitutionally deficient to 

nonetheless advise Reyes to accept the state’s generous plea offer. Because the trial justice did 

not consider the performance prong and because the genuine issue of material fact as to whether 

the exculpatory testimony existed must be resolved before these additional questions can be 

answered, Reyes’s claims cannot be summarily dismissed on the basis of an inability to satisfy 

the performance prong. 
- 47 -

not be resolved at the summary-dismissal stage. See Doyle v. State, 122 R.I. 590, 594, 411 A.2d 

907, 909 (1980); Palmigiano v. State, 120 R.I. 402, 406-07, 387 A.2d 1382, 1385 (1978). 

Because this record demonstrates the existence of a genuine issue of material fact about 

the question of exculpatory testimony and because the resolution of that question could impact 

the resolution of the prejudice prong, summary dismissal under § 10-9.1-6(c) on the basis that 

Reyes failed to establish prejudice was, under the terms of that statute, impermissible.

Conclusion

For all of these reasons, I would vacate the hearing justice’s summary dismissal of 

Reyes’s claims of ineffective assistance of counsel. It is my opinion that the hearing justice 

erred in granting postconviction counsel’s motion to withdraw and that Reyes did not receive the 

assistance of counsel to which he was statutorily entitled. That alone warrants a remand for 

further proceedings. Moreover, the majority improperly concludes that the hearing justice was 

precluded from considering the Cepeda statement, which was undeniably relevant to Reyes’s 

claims. The upshot of the majority’s decision is that Reyes will not receive full consideration of 

the merits of the claimed violations of his fundamental constitutional right. Although Reyes may 

look to a more hospitable forum for adjudication of this claim, see Martinez, 132 S. Ct. at 1318, 

1320, the merits should have been adjudicated in this jurisdiction. Instead, the one-two punch of 

the Shatney procedure, followed by an artificial application of this Court’s summary-judgment 

standard to a document that was not submitted in opposition to a summary-dismissal motion, has 

rendered the postconviction remedy a nullity in this case. Consequently, I respectfully dissent. 






RHODE ISLAND SUPREME COURT CLERK’S 

OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Pedro Reyes v. State of Rhode Island.

 

CASE NO: No. 2014-161-Appeal.

(PM 12-4701)

COURT: Supreme Court

DATE OPINION FILED: July 11, 2016 

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY: Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COURT:

 Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

 For Applicant: Camille A. McKenna

 Office of the Public Defender

 

For State: Virginia M. McGinn

 Department of Attorney General