Opinion
No. 2 CA-CR 2018-0341-PR
02-20-2019
THE STATE OF ARIZONA, Respondent, v. LUIS ANTONIO CABALLERO, Petitioner.
COUNSEL Barton & Storts P.C., Tucson By Brick P. Storts III Counsel for Petitioner
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NOT FOR PUBLICATION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. CR20091306001
The Honorable D. Douglas Metcalf, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barton & Storts P.C., Tucson
By Brick P. Storts III
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Luis Caballero seeks review of the trial court's summary denial of his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Caballero has not met his burden of demonstrating such abuse here.
¶2 In 2009, pursuant to a plea agreement related to four different cases, Caballero pled guilty to possession of a narcotic drug, possession of a narcotic drug for sale, and three counts of aggravated assault. The trial court sentenced him to concurrent and consecutive prison terms totaling 26.75 years. Caballero filed a petition for post-conviction relief raising claims of ineffective assistance of trial counsel, followed by a second petition challenging the conduct of Rule 32 counsel. In both proceedings, we denied relief on review. State v. Caballero, No. 2 CA-CR 2014-0311-PR (Ariz. App. Feb. 25, 2015) (mem. decision); State v. Caballero, No. 2 CA-CR 2015-0191-PR (Ariz. App. Sept. 18, 2015) (mem. decision). While Caballero's petition for review from the denial of his first two petitions was pending, he filed a third notice of post-conviction relief, which the court dismissed in January 2015.
Although Caballero listed all four of the underlying case numbers in his prior petitions, he filed the instant proceeding under only one of those four case numbers, specifically, CR 2009-1306001.
In its ruling denying post-conviction relief, the trial court referred to a fourth post-conviction proceeding filed in April 2018. That proceeding is not part of the record before us, nor is it relevant to our decision in this matter.
¶3 Caballero filed the underlying Rule 32 petition in July 2018, arguing he was entitled to reassert his claims of ineffective assistance of trial and Rule 32 counsel, contending that Crawford v. Fleming, 323 F. Supp. 3d 1186 (D. Or. 2018), and Martinez v. Ryan, 566 U.S. 1 (2012), were significant changes in the law entitling him to relief under Rule 32.1(g). See Ariz. R. Crim. P. 32.2(b), 32.4(a)(2)(A). The trial court denied relief without conducting an evidentiary hearing.
Caballero calls the underlying petition his "second" Rule 32 petition. He suggests, without citation to any legal authority, that it should be so characterized because it is the second petition in which he was represented by counsel.
¶4 In its ruling below, the trial court concluded that Crawford is factually distinguishable from Caballero's case, and determined that "[t]he issues decided in Crawford do not signal a substantial change in the law," and that "its holding [is not] binding on this Court." It also found that Martinez likewise does not constitute a significant change in the law. Based on its conclusion that Caballero was not entitled to relief under either Crawford or Martinez, the court correctly found he was precluded from raising the claims of ineffective assistance of trial and Rule 32 counsel that he had previously raised. See State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (claims of ineffective assistance of counsel fall under Rule 32.1(a)); see also Ariz. R. Crim. P. 32.2, 32.4(a)(2).
A pleading defendant like Caballero is constitutionally entitled to the effective assistance of counsel in his first, of-right Rule 32 proceeding, and is entitled to raise, in a timely filed second Rule 32 proceeding, a claim that his first Rule 32 counsel was ineffective. See Ariz. R. Crim. P. 32.1 (defining of-right proceeding and providing "[a]fter the court's final order or mandate" in of-right proceeding, "defendant also may file an of-right notice challenging the effectiveness of Rule 32 counsel in the first of-right proceeding"). But such a claim is subject to timeliness requirements and may only be raised in a second notice of post-conviction relief filed "no later than 30 days after the final order or mandate in the defendant's of-right petition for post-conviction relief." Ariz. R. Crim. P. 32.4(a)(2)(C).
¶5 On review, Caballero claims the trial court abused its discretion in rejecting his claims that Crawford and Martinez constitute a significant change in the law entitling him to relief under Rule 32.1(g), and maintains he is entitled to an evidentiary hearing on his claims of ineffective assistance of counsel. He contends the court's ruling was "an unreasonable application of clearly established federal law." We conclude the court did not abuse its discretion for several reasons.
¶6 First, Caballero has not established, either on review or below, that Crawford is a significant change in the law. As the state correctly argued in its response to the petition below, Caballero "has not alleged how [Crawford] would be at variance with any previous Arizona decision." Moreover, even if Caballero were correct that Crawford is factually similar to his case, an argument we do not address, that fact alone would not make his claim cognizable under Rule 32.1(g), as he seems to suggest. Second, Caballero has failed to meaningfully address on review the fact that this court has expressly determined that Martinez does not constitute a significant change in the law. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 6 (App. 2013) ("Martinez does not alter established Arizona law."). Third, federal district court decisions such as Crawford do not carry dispositive precedential weight in Arizona courts. Arpaio v. Figueroa, 229 Ariz. 444, ¶ 11 (App. 2012). Accordingly, the trial court did not abuse its discretion in concluding Caballero had not established a basis for relief under Rule 32.1(g), and that he is, therefore, precluded from rearguing his claims of ineffective assistance of counsel. See Ariz. R. Crim. P. 32.2(a)(2).
In light of our ruling, we do not address Caballero's argument that he is entitled to relief under Rule 32.1(g) because the relevant cases were decided after he was charged in 2008, but while his case was pending. --------
¶7 Because Caballero has failed to establish the trial court abused its discretion in summarily denying his petition, we grant review but we deny relief.