Opinion
No. 2 CA-CR 2018-0147-PR
09-19-2018
THE STATE OF ARIZONA, Respondent, v. ANGEL PETE RUIZ, Petitioner.
Angel Pete Ruiz, 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NOT FOR PUBLICATION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. CR20135012003
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
Angel Pete Ruiz, Buckeye
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Judge Espinosa and Chief Judge Eckerstrom concurred. EPPICH, Judge:
¶1 Angel Ruiz seeks review of the trial court's order summarily dismissing his 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). Ruiz has not shown such abuse here.
¶2 After a jury trial, Ruiz was convicted of two counts each of kidnapping and aggravated assault, and one count each of aggravated robbery, attempted aggravated robbery, armed robbery, attempted armed robbery, burglary, and possession of marijuana for sale. State v. Ruiz, 239 Ariz. 379, ¶ 5 (App. 2016). He was sentenced to concurrent and consecutive prison terms totaling 47.25 years. Id. ¶ 1. We vacated the attempt convictions on appeal, but otherwise affirmed Ruiz's convictions and sentences. Id. ¶ 17.
¶3 Ruiz sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no meritorious claim to raise under Rule 32. Ruiz then filed a pro se petition arguing that his trial counsel had been ineffective in failing to adequately investigate and litigate his case, the state had committed misconduct, and a victim had recanted his identification of Ruiz, constituting newly discovered evidence. The trial court summarily denied relief. This petition for review followed the court's denial of Ruiz's subsequent motion for rehearing.
¶4 On review, Ruiz largely repeats his arguments. We first address his claim of ineffective assistance. "To state 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); see also Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016). "To establish deficient performance, a defendant must show that his counsel's assistance was not reasonable under prevailing professional norms, 'considering all the circumstances.'" Kolmann, 239 Ariz. 157, ¶ 9 (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). "To establish prejudice, a defendant must 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Hinton, 571 U.S. at 275).
¶5 Ruiz complains generally that counsel did not obtain surveillance video that could have shown the movements of a victim before the robbery, failed to interview witnesses, and failed to develop a "time line of events." But even if trial counsel's investigation could have been more thorough, Ruiz has identified no exculpatory evidence that counsel would have discovered. He instead merely speculates about what counsel might have found. And, although he complains about counsel's conduct during several pretrial hearings, he has not demonstrated any likelihood the results of those hearings would have been different. Absent a showing of prejudice, Ruiz's claim of ineffective assistance fails. See Bennett, 213 Ariz. 562, ¶ 21.
¶6 We need not reach the merits of Ruiz's claim of prosecutorial misconduct because he did not raise the argument on appeal and it is therefore precluded pursuant to Rule 32.2(a)(3). And, although he seems to argue that trial and appellate counsel were ineffective in failing to raise this and other claims, he did not raise this argument below, and we do not address arguments not first raised in the petition for post-conviction relief. See State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980) (appellate court does not consider issues in petition for review that have "never been presented to the trial court for its consideration").
¶7 Ruiz's claim of newly discovered evidence is based on three letters written by one of his victims. That victim, who had identified Ruiz as one of his attackers immediately after the robbery, Ruiz, 239 Ariz. 379, ¶ 4, claimed in a notarized letter that he had been "mistaken" about his identification of Ruiz, and in two other letters that he had identified Ruiz because he "was mad about [his] 380.00 dollars that was gone," wanted to "get [his] money back," and "lied just to be helpful and get" his money.
¶8 Although a witness's recantation does not always squarely fit the definition of newly discovered evidence, our supreme court has recognized that it may be "[n]ewly discovered material facts," entitling a petitioner to relief under Rule 32.1(e), if the recantation is credible and probably would have changed the verdict. See State v. Hickle, 133 Ariz. 234, 238 (1982); see also State v. Saenz, 197 Ariz. 487, ¶ 7 (App. 2000) (to establish claim of newly discovered evidence, defendant must show "that the evidence was discovered after trial although it existed before trial; that it could not have been discovered and produced at trial through reasonable diligence; that it is neither cumulative nor impeaching; that it is material; and that it probably would have changed the verdict"). "Courts have long been skeptical of recanted testimony claims." State v. Krum, 183 Ariz. 288, 294 (1995). Thus, to warrant an evidentiary hearing, an affidavit recanting previous testimony must "appear[] particularly credible or reliable" or be supported by other evidence. Id.
¶9 Nothing about the victim's letters indicate his recantation is credible. Indeed, he gives inconsistent reasons for recanting, and offers no explanation for his professed belief that identifying Ruiz would help him recover his money or for his purportedly "mistaken" identification of Ruiz. And other evidence supports the victim's identification of Ruiz—as we explained in our decision on appeal, Ruiz was seen nearby after the robbery "breathing heavily," with shaking hands and a "disheveled" appearance and his cell phone was found near the site where the robbers had crashed their getaway vehicle. Ruiz, 239 Ariz. 379, ¶ 4.
Ruiz claims in his petition for review that the other victim, a federal agent, stated "Ruiz was not involved." Ruiz misstates the evidence. The agent did not specifically exclude Ruiz from the group of assailants, stating only that he did not see Ruiz during the robbery.
¶10 We grant review but deny relief.