Opinion
No. 2 CA-CR 2018-0092-PR
08-21-2018
THE STATE OF ARIZONA, Respondent, v. ALEJANDRO RICARDO MOLINA, Petitioner.
Alejandro R. Molina, Buckeye In Propria Persona
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NOT FOR PUBLICATION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. CR058428002
The Honorable Danelle B. Liwski, Judge
REVIEW GRANTED; RELIEF DENIED
Alejandro R. Molina, Buckeye
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Alejandro Molina seeks review of the trial court's order denying his untimely and successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.
¶2 After a jury trial in 1999, Molina was convicted of first-degree felony murder and was sentenced to a natural-life prison term. We affirmed Molina's convictions and sentences on appeal. State v. Molina, No. 2 CA-CR 00-0127 (Ariz. App. Aug. 28, 2001) (mem. decision). Molina then sought post-conviction relief in 2002 and 2009. We denied relief on review from the trial court's dismissal of his second Rule 32 petition. State v. Molina, No. 2 CA-CR 2010-0003-PR (Ariz. App. Apr. 15, 2010) (mem. decision).
In its response to the petition below, the state asserted this is Molina's fourth post-conviction proceeding. However, in its ruling denying relief, the trial court mentioned only one prior petition. In any event, it is clear Molina has filed at least two prior Rule 32 petitions.
¶3 Molina filed his most recent Rule 32 petition in 2017. Noting the petition was untimely and successive, the trial court nonetheless appointed counsel to address "solely" Molina's claim of ineffective assistance of counsel based on a significant change in the law pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). See Ariz. R. Crim. P. 32.1(g). In his Rule 32 petition, Molina alleged his first Rule 32 attorney and trial counsel were ineffective. He asserted Rule 32 counsel should have challenged trial counsel's failure to request a curative instruction or a mistrial in regard to the statement made by a potential juror during voir dire. That juror observed that Molina "look[ed] like a gang member," a statement Molina maintained "undoubtedly" impacted the outcome at trial. Notably, despite the court's directive that counsel address the asserted significant change in the law under Martinez, the petition did not mention that case, a significant change in the law, or Rule 32.1(g).
The trial court excused the juror. --------
¶4 The trial court summarily denied relief, noting that Molina had not sought relief under Rule 32.1(g) in his petition, nor had he "address[ed] any change in the law which would entitle [him] to relief." The court also noted that the time limits for Rule 32 proceedings are jurisdictional, see A.R.S. § 13-4234(C), (G), and thus concluded that Molina's claims of ineffective assistance of counsel, raised under Rule 32.2(a), were precluded as untimely. This pro se petition for review followed.
¶5 On review, Molina argues the trial court abused its discretion by denying his claim that Rule 32 and trial counsel were ineffective. Initially, we note that non-pleading defendants like Molina "have no constitutional right to counsel in post-conviction proceedings." See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013). Moreover, Molina has not addressed on review the court's legally correct conclusion that claims of ineffective assistance of counsel cannot be raised in an untimely, successive proceeding like this one. Such arguments are limited to claims raised pursuant to Rule 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(a), (b), 32.4(a)(2)(A); see also State v. Lopez, 234 Ariz. 513, ¶ 5 (App. 2014); State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (ineffective assistance claim raised under Rule 32.1(a)). And, in his petition below, Molina did not present any exception to preclusion, nor did he mention, much less establish, a significant change in the law pursuant to Rule 32.1(g), or explain how Martinez applied to his case, despite the court's appointment of counsel for that specific purpose. Accordingly, the court correctly found his claims precluded.
¶6 Finally, in an apparent attempt to raise a new claim, Molina asserts for the first time on review that his claim of ineffective assistance constitutes structural error. However, Molina is limited on review to the issues the trial court decided below, which did not include a claim of structural error. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii). Moreover, Molina is precluded from raising in this successive Rule 32 proceeding an independent claim of structural error, which he could have raised either on direct appeal or as a claim of ineffective assistance of trial counsel in his first Rule 32 proceeding. See Ariz. R. Crim. P. 32.2(a)(1), (3); cf. State v. Swoopes, 216 Ariz. 390, ¶ 42 (App. 2007) (if Arizona Supreme Court had intended fundamental error be exception to preclusion under Rule 32.2, it would have said so).
¶7 Therefore, we grant review but deny relief.