Opinion
No. 1 CA-CR 13-0336 PRPC
12-02-2014
STATE OF ARIZONA, Respondent, v. CLEMENT MAKUNG AYER, Petitioner.
COUNSEL Maricopa County Attorney's Attorney Office, Phoenix By Diane Meloche Counsel for Respondent Clement Makung Ayer, Buckeye Petitioner
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Review from the Superior Court in Maricopa County
No. CR1999-013235
The Honorable Roger E. Brodman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Attorney Office, Phoenix
By Diane Meloche
Counsel for Respondent
Clement Makung Ayer, Buckeye
Petitioner
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Michael J. Brown joined.
SWANN, Judge:
¶1 Clement Makung Ayer petitions this court for review of the trial court's dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 Ayer pled no contest to second-degree murder and aggravated assault. The trial court sentenced him to an aggregate term of twenty-two years' imprisonment. Ayer now seeks review of the summary dismissal of his latest successive petition for post-conviction relief. We have jurisdiction pursuant to Ariz. R. Crim. P. 32.9(c).
¶3 In his petition for review, Ayer argues that Martinez v. Ryan, 132 S. Ct. 1309 (2012), constitutes a significant change in the law, which allows him to raise untimely claims of ineffective assistance of both his trial counsel and his initial post-conviction relief counsel. We disagree. Martinez held that, "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez, 132 S. Ct. at 1320. This simply means that Ayer can seek habeas corpus relief in federal court based on ineffective assistance of counsel if he can first show either he had no counsel in his first post-conviction relief proceeding or counsel in his first post-conviction relief proceeding was ineffective. Martinez does not require a state court to consider all untimely claims of ineffective assistance of counsel raised in post-conviction proceedings.
¶4 For the foregoing reasons, we deny relief.