Opinion
No. 2 CA-CR 2018-0137-PR
09-10-2018
THE STATE OF ARIZONA, Respondent, v. OSCAR CASTILLO MENDOZA, Petitioner.
COUNSEL Harold L. Higgins PC, Tucson By Harold Higgins Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20111912001
The Honorable Teresa Godoy, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Harold L. Higgins PC, Tucson
By Harold Higgins
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
ESPINOSA, Judge:
¶1 Oscar Mendoza seeks review of the trial court's order summarily denying his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Mendoza has not shown such abuse here.
¶2 After a jury trial, Mendoza was convicted of child molestation and sentenced to a ten-year prison term. State v. Mendoza, 234 Ariz. 259, ¶ 1 (App. 2014). We affirmed his conviction and sentence on appeal, id., and Mendoza sought post-conviction relief, which the trial court denied. Mendoza did not seek review of that decision, instead filing a second notice of and petition for post-conviction relief. In that petition, he argued that May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), constituted a significant change in the law pursuant to Rule 32.1(g), and that "the charge against [him] and the prior act used in support of that charge" should have been "precluded from prosecution due to double jeopardy." He also claimed trial counsel was ineffective in failing to raise that issue. The trial court summarily denied relief. This petition for review followed.
¶3 On review, Mendoza reasserts both claims. We agree with the trial court that both warrant summary denial. In May, a federal trial court determined that A.R.S. §§ 13-1407(E) and 13-1410 unconstitutionally shifted the burden of proof to the defendant because, by making the lack of sexual motivation an affirmative defense to child molestation, they required him to disprove an element of the offense, namely "sexual intent." 245 F. Supp. 3d at 1154-56, 1164. But the court's conclusion in May is flatly contradicted by Arizona law, and we are not bound by federal district court decisions. See State v. Holle, 240 Ariz. 300, ¶¶ 17-19, 40 (2016) (§§ 13-1407(E) and 13-1410 do not violate due process); State v. Smyers, 207 Ariz. 314, n.4 (2004) ("The courts of this state are bound by the decisions of [our supreme] court and do not have the authority to modify or disregard [its] rulings."); Arpaio v. Figueroa, 229 Ariz. 444, ¶ 11 (App. 2012) (federal district court decisions
concerning state law not binding on this court). Thus, Mendoza cannot prevail under Rule 32.1(g).
¶4 Mendoza's belated claim of double jeopardy and ineffective assistance cannot be raised in this untimely proceeding. See Ariz. R. Crim. P. 32.1(a), 32.4(a)(2)(A). Mendoza asserts his claims "should not be precluded" because they are of "sufficient constitutional magnitude to require a knowing, voluntary and intelligent waiver," citing Stewart v. Smith, 202 Ariz. 446 (2002). But, as this court has explained, the waiver principles discussed in Stewart do not apply to untimely proceedings like this one. See State v. Lopez, 234 Ariz. 513, ¶¶ 7-8 (App. 2014).
¶5 Although we grant review, relief is denied.