Opinion
2 CA-CR 2023-0108-PR
06-15-2023
The State of Arizona, Respondent, v. Russell Joseph Baron, Petitioner.
Russell J. Baron, Eloy In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2013441152001 The Honorable Dean M. Fink, Judge
Russell J. Baron, Eloy
In Propria Persona
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE
¶1 Russell Baron seeks review of the trial court's order summarily denying his successive post-conviction proceeding, filed pursuant to Rule 32, Ariz. R. Crim. P. We review a court's denial of postconviction relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.
¶2 After a jury trial, Baron was convicted of second-degree murder. The trial court sentenced him to an aggravated prison term of twenty-four years. We affirmed his conviction and sentence on appeal. State v. Baron, No. 1 CA-CR 16-0769 (Ariz. App. Jan. 30, 2018) (mem. decision). In August 2018, the court denied Baron's first notice of post- conviction relief, in which he asserted that he was raising claims under Rule 32.1(a), (e), (f) and (h), specifically including claims based on ineffective assistance of trial and appellate counsel and misconduct by the prosecutor, police, and medical examiner. He did not timely seek review of that proceeding.
¶3 In December 2021, Baron initiated a successive post- conviction proceeding. He asserted he was raising claims under Rule 32.1(a), (c), (e), (f), (g) and (h). In his sixty-eight page petition, to which he attached 341 pages of exhibits, he raised claims of ineffective assistance of trial counsel; misconduct by the prosecutor, judge, medical examiner, and police; a significant change in the law; and actual innocence. He also maintained there was newly discovered evidence, his untimely filing was not his fault, and his sentence was illegal. He asserted that his claims were not precluded and asked the trial court to either vacate his conviction or grant an evidentiary hearing.
¶4 In September 2022, the trial court summarily denied Baron's petition, essentially adopting what it characterized as the state's "well- reasoned response that Mr. Baron fail[ed] to raise a colorable claim for relief." In its response, the state asserted that Baron's claims of ineffective assistance were precluded, noting that he had raised such claims in his first, untimely post-conviction proceeding and that he had not, in any event, established a colorable claim of ineffective assistance. The state also asserted that Baron's claims of misconduct by the police, the medical examiner, the prosecutor, and members of the judiciary were likewise precluded, noting that he had failed to provide a sufficient showing why he was asserting many of these arguments more than two years after his conviction was affirmed on appeal. The state further argued that, contrary to Baron's claim, Martinez v. Ryan, 566 U.S. 1 (2012), did not constitute a significant change in the law that applied to him. Insofar as Baron claimed he was actually innocent, the state maintained that not only was that claim precluded, but on appeal this court had "no difficulty concluding that the state presented sufficient evidence from which the jury could reasonably have found that Baron committed second degree murder." Baron, No. 1 CA-CR 16-0769, ¶ 11. The state also argued that Baron did not establish the elements of a claim of newly discovered evidence under Rule 32.1(e), and his assertion under Rule 32.1(f) that his late filing was not his fault did not apply to his Rule 32 proceeding.
In its ruling dismissing Baron's first Rule 32 proceeding, the trial court noted that he had been informed of the deadline for filing a Rule 32 petition at sentencing.
¶5 On review, Baron asserts the trial court's ruling was premature and contradicted the facts, and he contends the court lacked jurisdiction to rule on his petition. He maintains that his "31-claims" are not precluded, arguing they are of sufficient constitutional magnitude to avoid preclusion. He also asserts that, because the state failed to "separately address" each of his claims, it is this court's "duty" to ensure that they are adjudicated on the merits. Baron essentially repeats his claims of ineffective assistance of trial counsel and his assertions of police, prosecutorial, and judicial misconduct, arguing that the evidence establishes the case against him was "fabricated" and that his trial was "feigned." He also reasserts that Martinez constitutes a significant change in the law. He requests that we vacate his conviction or remand for an evidentiary hearing.
Baron lists six filings he contends the trial court was required to rule upon before denying his Rule 32 petition. Although Baron included those pleadings in his 556-page petition for review, one of the filings does not appear to be in the court record before us, nor do some of them bear date stamps establishing when and if they were filed with the court.
Baron contends that because he had filed only a notice, rather than a petition, in his first post-conviction proceeding, the trial court incorrectly deemed his most recent proceeding a successive "petition." Although the court may have mistakenly stated that his first proceeding involved a petition, it nonetheless correctly concluded that this is a successive Rule 32 proceeding.
Baron asserts the trial court lacked jurisdiction to deny his Rule 32 petition for a variety of reasons, including that the judge had committed perjury at trial and sentencing and that he had "facilitated a conspiracy to illegally convict" Baron. We flatly reject these wholly unsupported arguments.
Insofar as Baron also maintains that, as a pro se litigant, he should not be held to the standard of an attorney, we disagree. See State v. Cornell, 179 Ariz. 314, 331 (1994); see also Smith v. Rabb, 95 Ariz. 49, 53 (1963) (pro se parties held to same familiarity with required procedures and same notice of statutes and local rules as attributed to counsel).
¶6 Generally, a "defendant is precluded from relief under Rule 32.1(a) based on any ground . . . finally adjudicated on the merits in an appeal" or "waived at trial or on appeal, or in any previous post-conviction proceeding." Ariz. R. Crim. P. 32.2(a)(2), (3). A claim of ineffective assistance of counsel falls within Rule 32.1(a) and, as such, cannot be raised in an untimely proceeding like this one. See Ariz. R. Crim. P. 32.4(b)(3)(A); State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (ineffective assistance claim raised under Rule 32.1(a)). Because Baron could have, and in fact, did raise claims of ineffective assistance in his first Rule 32 proceeding, any such claims are now precluded. See State v. Spreitz, 202 Ariz. 1, ¶ 4 (2002) ("Our basic rule is that where ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded." (emphasis omitted)).
¶7 Moreover, although Rule 32.4(b)(3)(D) directs the trial court to excuse an untimely notice raising a claim pursuant to Rule 32.1(a) "if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault," because the record shows that Baron had been informed of the deadline for filing a Rule 32 petition at sentencing, we infer the court did not find his purported reasons for failing to timely file his notice of post-conviction relief adequate. See State v. Perez, 141 Ariz. 459, 464 (1984) ("We are obliged to affirm the trial court's ruling if the result was legally correct for any reason."). Similarly, because Baron's claims of prosecutorial, medical examiner, police, and judicial misconduct arise under Rule 32.1(a), they too are precluded in this successive proceeding. See Ariz. R. Crim. P. 32.2(a)(2), (3).
¶8 In addition, although a timely claim of sufficient constitutional magnitude may be exempt from preclusion, such a claim is not exempt from the timeliness requirements of Rule 32.4(b)(3). See State v. Lopez, 234 Ariz. 513, ¶¶ 8-9 (App. 2014) (untimely notice of post-conviction relief without an exception is time-barred by jurisdictional limitations regardless of the claim's "constitutional magnitude"). "Thus, whether the underlying claim is of a sufficient constitutional magnitude to require a knowing, voluntary, and intelligent waiver is immaterial ...." Id. ¶ 8.
¶9 In addition, "Claims for relief based on Rule 32.1(b) through (h) are not subject to preclusion under Rule 32.2(a)(3), but they are subject to preclusion under Rule 32.2(a)(2)." Ariz. R. Crim. P. 32.2(b). "However, when a defendant raises a claim that falls under Rule 32.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Id. If the defendant fails to do so, the court may summarily dismiss the proceeding. Id. The court may determine that an issue is precluded "[a]t any time." Id. Accordingly, insofar as Baron reasserts his claims of newly discovered evidence, a significant change in the law, and actual innocence, we infer the trial court concluded that summary dismissal was appropriate, either because Baron had raised related claims in his first Rule 32 proceeding, or because he had not raised appropriate claims or adequately explained the reasons for their untimely assertion as Rule 32.2(b) requires. See Perez, 141 Ariz. at 464.
Moreover, this court has expressly determined that Martinez does not constitute a significant change in the law under Rule 32.1(g). See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 6 (App. 2013) ("Martinez does not alter established Arizona law.").
¶10 Insofar as Baron believes he is entitled to relief under Rule 32.1(f), not only did the trial court reject this same argument in his first Rule 32 proceeding, but Rule 32.1(f) does not apply to him. That rule applies only to the failure to timely file a notice of appeal. Additionally, to the extent Baron attempts to challenge the manner in which he was indicted, because it does not appear he did so before trial, he may not do so now. See Ariz. R. Crim. P. 13.5(a), (d), 16.1(b), (c); State v. Anderson, 210 Ariz. 327, ¶¶ 15-17 (2005) (quoting 203 Ariz. LI (2002)). Finally, for the reasons previously stated, we likewise reject Baron's suggestion that the court erroneously rejected the claims in his amendment to the petition for postconviction relief.
Disposition
¶11 Accordingly, we grant review but deny relief.