Opinion
No. 2 CA-CR 2015-0149-PR
08-10-2015
THE STATE OF ARIZONA, Respondent, v. NATHANIEL EDUARDO CAÑEZ, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Isabel G. Garcia, Pima County Legal Defender By Alex Heveri, Deputy Legal Defender, Tucson 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NOT FOR PUBLICATION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. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20100880001
The Honorable Christopher C. Browning, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Isabel G. Garcia, Pima County Legal Defender
By Alex Heveri, Deputy Legal Defender, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Miller authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. MILLER, Presiding Judge:
¶1 Petitioner Nathaniel Cañez seeks review of the trial court's order denying his untimely, successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "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). Cañez has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Cañez was convicted of drive-by shooting and three counts of aggravated assault. This court affirmed his convictions and sentences on appeal. State v. Cañez, No. 2 CA-CR 2011-0172 (memorandum decision filed Mar. 23, 2012). He thereafter sought and was denied post-conviction relief, and this court granted review, but denied relief on his petition for review. State v. Cañez, No. 2 CA-CR 2014-0069-PR (memorandum decision filed July 2, 2014).
¶3 In June 2014, Cañez filed a second notice of post-conviction relief. He argued in his petition that the court should "dismiss his case for the state's failure to disclose Brady . . . evidence." The trial court summarily denied relief, concluding the Brady claim was precluded and Cañez had not established a claim of newly discovered evidence under Rule 32.1(e).
Brady v. Maryland, 373 U.S. 83 (1963).
¶4 On review, Cañez again asserts the state violated the rule set forth in Brady and argues the trial court abused its discretion in denying his claim as precluded. But a claim under Brady is a constitutional claim and therefore is cognizable under Rule 32.1(a). See Brady v. Maryland, 373 U.S. 83, 87 (1963) (suppression of evidence by state "of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment"). As such, a Brady claim is subject to preclusion pursuant to Rule 32.2(a) and cannot be raised in an untimely proceeding. Ariz. R. Crim. P. 32.4(a).
¶5 As the trial court properly recognized, however, Cañez was not precluded from making a claim that he was entitled to relief based on newly discovered evidence, specifically the interview with a victim conducted in 2014, which is the basis for his Brady claim. Ariz. R. Crim. P. 32.2(b), 32.4(a). Cañez argues that the court's analysis of whether this evidence would have changed the outcome or was merely cumulative "misses the point entirely." But such an analysis is required under Rule 32.1(e)(3) in determining whether a petitioner has stated a claim for relief based on newly discovered evidence. Having properly concluded that Cañez's claim based on prosecutorial misconduct and Brady was precluded, the court correctly analyzed Cañez's claim insofar as it could be construed as one based on newly discovered evidence. "No useful purpose would be served by this court rehashing the . . . court's correct ruling in a written decision," and we therefore adopt the portion of the ruling analyzing Cañez's claim pursuant to Rule 32.1(e). State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993).
¶6 Additionally, even were we to accept Cañez's implicit assertion that, despite any such provision in Rule 32, a claim of this nature is exempt from preclusion notwithstanding whether the evidence withheld qualifies as newly discovered evidence, this case presents a situation distinguishable from those in the cases on which he relies for his claim. In State v. Minnitt, the prosecutor, inter alia, "elicited testimony . . . that he knew was false." 203 Ariz. 431, ¶ 38, 55 P.3d 774, 782 (2002). In Milke v. Mroz, the state withheld "evidence of numerous prior acts of improper and deceitful conduct" by the investigating officer in the case. 236 Ariz. 276, ¶ 7, 339 P.3d 659, 663 (App. 2014). In State v. Jorgenson, the prosecutor "engaged in knowing and intentional misconduct," by "'ignoring the facts . . . , [and] relying on prejudice'" throughout the trial. 198 Ariz. 390, ¶ 2, 10 P.3d 1177, 1177 (2000), quoting State v. Hughes, 193 Ariz. 72, ¶ 61, 969 P.2d 1184, 1198 (1998) (alterations in Jorgenson). We cannot say the situation here presents the type of "extreme misconduct" that the prosecutor "knew was grossly improper and highly prejudicial." Minnitt, 203 Ariz. 431, ¶ 4, 55 P.3d at 776.
Unlike this case, each of the cases on which Cañez relies was decided based on double jeopardy principles when retrial was sought after the defendant had been granted relief on the grounds of prosecutorial misconduct. Thus, the claims in those cases were not precluded. --------
¶7 Thus, although we grant the petition for review, we deny relief.