Opinion
No. 1 CA-CR 12-0748 PRPC
03-04-2014
STATE OF ARIZONA, Respondent, v. KELLY K. HAMILTON, Petitioner.
Arizona Attorney General, Phoenix By Joseph T. Maziarz Counsel for Respondent Kelly K. Hamilton, Phoenix Petitioner Pro Se
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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. CR0000-126410
The Honorable Cynthia Bailey, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Arizona Attorney General, Phoenix
By Joseph T. Maziarz
Counsel for Respondent
Kelly K. Hamilton, Phoenix Petitioner Pro Se
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 Petitioner Kelly K. Hamilton petitions this court for review from the dismissal of his petition for post-conviction relief. Presiding Judge Gould and Judges Swann and Thompson have considered the petition for review and, for the reasons stated, grant review and remand for proceedings consistent with this decision order.
¶2 In 1982, Hamilton pled guilty in the Maricopa County Superior Court to first degree murder and the court sentenced him to imprisonment for life with a possibility of parole after twenty-five years. In March 2012 while housed with the Department of Corrections in Yuma County, Hamilton filed a petition for writ of habeas corpus in the Yuma County Superior Court and identified the Arizona Board of Executive Clemency ("the Board"), members of the Board and other parties as respondents. Within that petition, Hamilton presented various claims regarding the Board's repeated denial of parole for Hamilton since he became eligible for parole in 2007.
The Board acts as Hamilton's parole board.
¶3 There is nothing in the record on review to indicate whether any of the respondents responded to Hamilton's petition. Regardless, the Yuma County Superior Court transferred the case to the Maricopa County Superior Court and ordered the petition treated as a petition for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32.3. The Maricopa County Superior Court also treated the petition as a petition for post-conviction relief, found Hamilton failed to present any cognizable claims under Rule 32 and dismissed the petition. Hamilton now seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶4 Both of the superior courts improperly treated Hamilton's petition for writ of habeas corpus as a petition for post-conviction relief. Rule 32.3 permits a trial court to treat a petition for writ of habeas corpus as a petition for post-conviction relief only where the defendant attacks the validity of the conviction or sentence. Ariz. R. Crim. P. 32.3. Nowhere in his petition for writ of habeas corpus does Hamilton attack the validity of his conviction or sentence. The superior courts, therefore, could not utilize Rule 32.3 to treat the petition as a petition for post-conviction relief.
¶5 A petition for writ of habeas corpus, however, is not the proper method to challenge a decision of the Board regarding parole. A defendant may challenge the Board's decision regarding parole only through a special action, and then may only allege violations of due process. See Sheppard v. Arizona Board of Pardons and Paroles, 111 Ariz. 587, 588, 536 P.2d 196, 197 (1975) (The legislature has denied the courts the right to review decisions of the Board regarding parole but for special actions with "the limited purpose of considering due process violations in the hearing process."). We note, however, that where a defendant seeks to challenge the Board's decision regarding parole through an erroneously denominated pleading that is otherwise sufficient to present a claim, we may remand to the trial court to permit the trial court to treat the matter as a special action. Id. We elect to do so here.
¶6 We grant review, remand and direct the trial court to treat Hamilton's petition for writ of habeas corpus as a petition for special action. We express no views on the validity of any claim Hamilton presents.