Opinion
No. 1 CA-CR 13-0673 PRPC
05-28-2015
STATE OF ARIZONA, Respondent, v. NICHOLAS SIZEMORE, Petitioner.
COUNSEL Navajo County Attorney's Office, Holbrook By Galen H. Wilkes Counsel for Respondent Nicholas Sizemore, Phoenix Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Navajo County
No. CR20010338
The Honorable Robert J. Higgins, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Navajo County Attorney's Office, Holbrook
By Galen H. Wilkes
Counsel for Respondent
Nicholas Sizemore, Phoenix
Petitioner
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.
SWANN, Judge:
¶1 Nicholas Sizemore petitions this court for review of the dismissal of his notice of post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 Sizemore pled guilty to first degree murder after he murdered a fellow prison inmate in 2000. The trial court sentenced him to imprisonment for natural life and ordered the sentence to run consecutively to another sentence for first degree murder that Sizemore was already serving. Sizemore now seeks review of the summary dismissal of his first notice of post-conviction relief. We have jurisdiction pursuant to Ariz. R. Crim. P. 32.9(c).
¶3 We deny relief. The trial court sentenced Sizemore on May 6, 2003. A defendant must file a notice of post-conviction relief in a Rule 32 "of-right" proceeding within 90 days after the entry of judgment or sentence. Ariz. R. Crim. P. 32.4(a). Sizemore did not file a notice of post-conviction relief within 90 days, but instead waited ten years to file his first untimely notice. A trial court may summarily dismiss a notice for post-conviction relief that is not filed within 90 days. State v. Rosario, 195 Ariz. 264, 266, ¶ 7, 987 P.2d 226, 228 (App. 1999).
¶4 Sizemore contends, however, that his notice is timely. Sizemore argued in his notice that the United States Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), constitutes a significant change in the law that allows him to raise an untimely claim of ineffective assistance of counsel. Martinez affords Sizemore no relief. Martinez held, "Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez, 132 S.Ct. at 1320. This simply means Sizemore can seek habeas corpus relief in federal court based on ineffective assistance of trial counsel if he can first show either he had no counsel in his first post-conviction relief proceeding or counsel in his first post-conviction relief proceeding was ineffective. Martinez does not require a state
court to consider all untimely claims of ineffective assistance of counsel raised in post-conviction proceedings.
¶5 Sizemore also argued in his notice pursuant to Rule 32.1(f) that the failure to file a timely notice was not his fault because both of his trial counsel assured him they would file a timely of-right notice of post-conviction relief. The trial court explained Sizemore's post-conviction rights of review to him at sentencing and further explained that he had 90 days to file a notice of post-conviction relief. Sizemore also received and signed a written notice of his rights of review. That notice also informed Sizemore that he must file his notice of post-conviction relief within 90 days. Sizemore's claim that he waited ten years for counsel to seek post-conviction relief, and did so without a single word to or from counsel regarding the status of any such proceeding, strains the limits of credibility beyond the breaking point.
¶6 Regardless, even if we assume arguendo that Sizemore's notice was timely pursuant to Rule 32.1(f), we would deny relief. In his notice, Sizemore argued that he was presenting a claim pursuant to Wiggins v. Smith, 539 U.S. 510 (2003). In support of this claim, Sizemore argued only that both his trial counsel were ineffective when they failed to conduct a reasonable pretrial investigation. Sizemore did not indicate further what counsel specifically failed to do, when they failed to do it, what they should have done, what they would have discovered if they had done so, how any discovery they made would have in any way affected Sizemore's defense, plea negotiations, conviction or sentence specifically or his case in general, nor did Sizemore indicate how he was otherwise prejudiced by any action or inaction of counsel. Sizemore also indicated he was presenting a claim pursuant to Hill v. Lockhart, 474 U.S. 52 (1985), but provided even less information to substantiate this claim. Therefore, regardless of whether or not the notice was timely, Sizemore's notice did not present meritorious, substantiated claims for relief and the notice should have been summarily dismissed pursuant to Rule 32.2(b).
¶7 It is only in his petition for review that Sizemore presents specific claims pursuant to Wiggins and Hill and provides supporting argument with citation to both legal authority and the record. A petition for review may not present issues and arguments not first presented to the trial court. State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). For the same reasons, we do not address the other new issues Sizemore presents in his petition for review that he did not raise in the notice he filed below.
CONCLUSION
¶8 For the foregoing reasons, we grant review and deny relief.