Opinion
2 CA-CR 2023-0093-PR
07-31-2023
The State of Arizona, Respondent, v. John Anthony Majalca, Petitioner.
John Anthony Majalca, Yuma In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20183503001 The Honorable James E. Marner, Judge REVIEW GRANTED; RELIEF DENIED
John Anthony Majalca, Yuma In Propria Persona
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE:
¶1 Petitioner John Majalca seeks review of the trial court's order summarily denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Majalca has not sustained his burden of establishing such abuse here.
¶2 Following a jury trial, Majalca was convicted of possession of a narcotic drug for sale, possession of drug paraphernalia, two counts of possession of a narcotic drug, and four counts of possession of a deadly weapon during the commission of a felony drug offense. The trial court imposed concurrent prison terms, the longest of which is twelve years. We affirmed Majalca's convictions and sentences on appeal. State v. Majalca, 251 Ariz. 325 (App. 2021).
¶3 Majalca then sought post-conviction relief, and appointed counsel filed a notice of "no colorable claims" in July 2022. In his pro se petition filed in October 2022, Majalca requested an evidentiary hearing, asserting that retained counsel was ineffective in failing to conduct a "reasonable" pretrial investigation and demand a probable cause hearing, resulting in the violation of his Fourth Amendment rights. He also seemed to argue that counsel's conduct at the suppression hearing was deficient.
¶4 In March 2023, the trial court summarily dismissed the petition. The court noted that, insofar as Majalca "appear[ed] to suggest that the stop and search that led to his arrest was in violation of the 4thAmendment," because that argument was raised on appeal, it is precluded. See id. ¶¶ 11, 23; see also Ariz. R. Crim. P. 32.1(a), 32.2(a)(2). The court also determined that Majalca did not establish a colorable claim of ineffective assistance, noting that the record "clearly" showed that "both defendant's trial attorneys made significant efforts to persuade the court to suppress the evidence that was seized at the time he was arrested and which was the basis of the charges for which he was convicted." The court summarized counsels' efforts in this regard; namely, Majalca's first trial attorney conducted pretrial interviews and each trial attorney filed a motion to suppress, which Majalca relied on for facts and arguments in his petition for post-conviction relief. This pro se petition for review followed.
¶5 On review, Majalca asserts his Fourth Amendment rights were violated for various reasons arising from the suppression hearing, and contends that counsel was ineffective at that hearing for failing to address "the real facts" related to probable cause to prolong the civil traffic stop. To establish "a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id.
¶6 We initially note that Majalca's petition for review is, for the most part, a verbatim copy of his petition for post-conviction relief. In addition, Majalca does not state why he believes the trial court improperly dismissed his petition, much less explain how it abused its discretion by doing so. See Ariz. R. Crim. P. 32.16(c)(2)(D) (petition for review must contain "reasons why the appellate court should grant the petition"); State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015) ("We review a trial court's denial of post-conviction relief for abuse of discretion."). Although these factors alone are sufficient reason to deny review, in our discretion, we do not do so. See Ariz. R. Crim. P. 32.16(k) (describing appellate review under Rule 32.16 as discretionary); see State v. French, 198 Ariz. 119, ¶ 9 (App. 2000) (summarily rejecting claims not complying with rule governing form and content of petitions for review), disapproved on other grounds by Stewart v. Smith, 202 Ariz. 446, ¶ 10 (2002); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶7 Insofar as Majalca claims that his Fourth Amendment rights were violated at the suppression hearing, as the trial court correctly noted, this claim is precluded because we decided it on the merits on appeal. See Majalca, 251 Ariz. 325, ¶¶ 11, 23; see also Ariz. R. Crim. P. 32.1(a), 32.2(a)(2). In our opinion on appeal, we specifically determined that the court correctly denied the motion to suppress, finding that the traffic stop in this case was permissibly prolonged. Majalca, 251 Ariz. 325, ¶¶ 23-24. We noted that the officers had "independent reasonable suspicion to detain Majalca to wait for the canine unit to arrive" and, therefore, no Fourth Amendment violation occurred. Id. ¶¶ 19-24 &20.
¶8 And, to the extent Majalca also asserts that counsel was ineffective for failing to adequately represent him at the suppression hearing, we conclude the trial court properly rejected that claim. Indeed, as previously noted, the court summarized trial counsels' extensive efforts to present these claims on behalf of Majalca, both at the pretrial stage and upon filing and supporting two motions to suppress. We thus find no abuse of discretion in the court's denial of post-conviction relief.
In addition, although Majalca argued in his Rule 32 petition that his attorney "was ineffective in failing to conduct a reasonable pre-trial investigation," he now argues that "[a]dmittedly petitioner's counsel may not have been ineffective in failing to conduct a reasonable pr[e]-trial investigation," but nonetheless maintains that counsel did not effectively represent him at the suppression hearing. He contends that if counsel had done so, the outcome would have been different, and asks that we "consider the facts that were suppressed from that suppression hearing." To the extent he is presenting a new argument, albeit one related to the claim he previously raised in his petition below, we do not consider it. See Ariz. R. Crim. P. 32.16(c)(4) ("failure to raise any issue that could be raised in the petition for review . . . constitutes a waiver of appellate review of that issue"); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review).
¶9 Accordingly, we grant review but deny relief.