Opinion
08-26-2013
THE STATE OF ARIZONA, Respondent, v. DOUGLAS MAX BOLDT, Petitioner.
Sheila Sullivan Polk, Yavapai County Attorney By Sheila Sullivan Polk Attorneys for Respondent Douglas M. Boldt In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF YAVAPAI COUNTY
Cause No. P1300CR20010395
Honorable Celé Hancock, Judge
REVIEW GRANTED; RELIEF DENIED
Sheila Sullivan Polk, Yavapai County Attorney
By Sheila Sullivan Polk
Prescott
Attorneys for Respondent
Douglas M. Boldt Florence
In Propria Persona
ECKERSTROM, Judge.
¶1 Pursuant to a plea agreement, petitioner Douglas Boldt was convicted of first-degree felony murder in 2002 and given a natural life sentence. Boldt filed his first petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., in 2002, followed by five successive post-conviction pleadings. In each instance, the trial court summarily dismissed Boldt's petition or notice, and on two occasions, this court either dismissed or denied Boldt's petitions for review. Boldt now seeks review from the court's dismissal of his most recent notice of post-conviction relief, filed in 2012. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
The fourth pleading was entitled a petition for writ of habeas corpus, which the trial court deemed a petition for post-conviction relief.
¶2 In a ruling dated May 14, 2012, the trial court dismissed Boldt's notice based on preclusion. See Ariz. R. Crim. P. 32.2(a)(2), (3) (precluding claims based on any ground "[f]inally adjudicated on the merits . . . in any previous collateral proceeding" or "[t]hat has been waived . . . in any previous collateral proceeding."). On review, Boldt argues the court improperly dismissed his claim of actual innocence raised pursuant to Rule 32.1(h), and maintains he is entitled to an evidentiary hearing "to subpoena and compel[] witness testimony [to] present new evidence in this case to prove he is actually innocent." He also asserts the preclusive effect of Rule 32.2(a) does not apply to him. See Ariz. R. Crim. P. 32.2(b) (preclusive effect of Rule 32.2(a) "shall not apply to claims for relief based, inter alia, on Rule 32.1(h)).
Although Boldt raised an additional claim in his notice below, because he has not raised it on review, we do not address it.
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¶3 As the trial court correctly concluded, Boldt's claims are precluded pursuant to Rule 32.2(a). Although Boldt stated in his notice that he was asserting a claim based on actual innocence, an exception to preclusion under Rule 32.2(b), nothing in the record establishes "meritorious reasons . . . substantiating the claim and indicating why the claim was not stated in the previous petition," thereby excusing Boldt from the preclusive effect of Rule 32. Ariz. R. Crim. P. 32.2(b). Moreover, although Boldt did, in fact, raise a claim based on actual innocence in a prior Rule 32 proceeding, he has not suggested there is new evidence to support raising this claim again.
¶4 Additionally, to the extent Boldt's claim that he would have been able to prove his innocence "if it had not been for trial counsel[']s negligence" can be considered one of ineffective assistance of counsel, he raised such claims in prior Rule 32 proceedings and is precluded from doing so again. See Ariz. R. Crim. P. 32.2(a)(2), (3); see also State v. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (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).
¶5 Nothing in Boldt's petition suggests the trial court abused its discretion in denying his sixth post-conviction petition. Accordingly, although we grant Boldt's petition for review, we deny relief.
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PETER J. ECKERSTROM, Judge
CONCURRING: ______________________________
VIRGINIA C. KELLY, Presiding Judge
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PHILIP G. ESPINOSA, Judge