Opinion
No. 2 CA-CR 2013-0347-PR
01-07-2014
THE STATE OF ARIZONA, Respondent, v. PHILLIP JOHN CORTEZ, Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Phillip Cortez, Tucson In Propria Persona
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
Nos. CR20083649 and CR20083868
The Honorable Jeffrey T. Bergin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Phillip Cortez, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
ECKERSTROM, Judge:
¶1 Phillip Cortez seeks review of the trial court's summary dismissal of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review and, for the following reasons, we deny relief.
¶2 In Pima County Cause No. CR20083649, a jury found Cortez guilty of armed robbery, kidnapping, aggravated assault with a deadly weapon, and fleeing from a law enforcement vehicle, and found all but the last to be dangerous offenses. Cortez waived his right to a jury trial on an additional charge of possessing a deadly weapon as a prohibited possessor; the trial court found him guilty of that offense and also found he had two or more historical prior felony convictions. In Pima County Cause No. CR20083868, Cortez pleaded guilty to an attempted armed robbery that was charged and admitted as a dangerous offense for sentencing purposes. At a consolidated hearing held on May 11, 2009, the trial court sentenced Cortez to concurrent terms of imprisonment on all counts in both cause numbers, with 15.75 years being the longest sentence imposed.
¶3 We affirmed Cortez's convictions and sentences in Cause No. CR20083649 on appeal, State v. Cortez, No. 2 CA-CR 2009-0157 (memorandum decision filed Jan. 7, 2010); our mandate issued on February 16, 2010. Cortez subsequently filed a notice of post-conviction relief and a pro se petition in that case. The court summarily dismissed the petition, finding Cortez had failed to state a colorable claim of ineffective assistance of counsel and finding his other claims precluded. This court dismissed Cortez's petition for review of that decision.
¶4 In Cause No. CR20083868, Cortez filed a pro se, of-right petition for post-conviction relief in which he alleged sentencing error and a related claim of ineffective assistance of counsel. The trial court summarily dismissed that petition after finding Cortez had failed to state a colorable claim, and this court denied relief after review. State v. Cortez, No. 2 CA-CR 2010-0151-PR (memorandum decision filed Aug. 12, 2010).
¶5 Cortez filed a successive notice of post-conviction relief under both cause numbers in December 2012 and a "supplement" to that notice in February 2013. The trial court summarily dismissed the notice on April 5, 2013, and Cortez did not seek review of that decision.
¶6 On April 22, Cortez then filed another successive notice of post-conviction relief under both cause numbers, followed by a pro se petition filed in June 2013. In this most recent proceeding, Cortez alleged claims of trial error, prosecutorial misconduct, and ineffective assistance of counsel in Cause No. CR20083649, and ineffective assistance of counsel during plea negotiations in Cause No. CR20083868. Cortez acknowledged his successive notice was untimely, but maintained his claims were not precluded because they were "being raised pursuant to Rule 32.1(e) [and] (h)." The trial court summarily dismissed the notice and petition, and it later denied Cortez's motion to reconsider that ruling, finding he had "failed to provide sufficient factual or legal reason" to "accept an untimely notice or petition as an exception" to Rules 32.2 and 32.4. This petition for review followed.
¶7 Cortez argues the trial court abused its discretion in summarily denying relief, and he asks this court to remand the case for further proceedings. We review the summary dismissal of Rule 32 claims for an abuse of discretion. See State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). Cortez has not met his burden of demonstrating an abuse of discretion here.
¶8 On review, Cortez repeats his assertions regarding the merits of his claims of trial error, prosecutorial misconduct, and
ineffective assistance of counsel, and argues the trial court's summary "denial of [his] colorable claim[s] is contrary to and involved an unreasonable application of" the law. Quoting State v. Donald, 198 Ariz. 406, ¶ 17, 10 P.3d 1193, 1200 (App. 2000), Cortez argues "to achieve an evidentiary hearing on a claim, a petitioner 'need not provide detailed evidence, but must provide specific [factual] allegations that, if true, would entitle him to relief.'" But unlike the defendant in Donald, Cortez did not raise his claims in a first or timely petition for post-conviction relief, see id. ¶¶ 5-7, and the court's ruling here was based on its conclusion that Cortez had failed to establish an exception to preclusion that would permit him to assert his claims in an untimely, successive Rule 32 proceeding. Based on the court's conclusion, summary dismissal was appropriate without regard to whether Cortez's claims were otherwise "colorable." See Ariz. R. Crim. P. 32.6(c) (directing court to first "identify all claims that are procedurally precluded" under Rule 32 and dismiss petition unless evidentiary hearing required for any "remaining claim") (emphasis added).
¶9 Cortez does not address the trial court's determination that his claims are precluded except to assert that he "clearly stated on page 1 of the Rule 32 [post-conviction relief petition] that the allegations were brought because of newly discovered evidence and actual innocence" pursuant to Rule 32.1(e) and (h). See Ariz. R. Crim. P. 32.2(b) (excluding claims based on Rule 32.1(d) through (h) from general rule of preclusion found in Rule 32.2(a)). Absent any meaningful argument to the contrary, we cannot say the court abused its discretion in finding Cortez's claims precluded.
¶10 The notice of post-conviction relief Cortez filed to initiate the instant proceeding contains no meaningful explanation for his failure to raise his claims in a previous petition or a timely manner, and the trial court could have dismissed the proceeding based on that deficiency alone. See Ariz. R. Crim. P. 32.2(b) (stating untimely or successive notice of post-conviction relief "shall be summarily dismissed" if it fails to "set forth the substance of the specific exception [to preclusion] and the reasons for not raising the claim in the previous petition or in a timely manner"). With respect to a few of the "newly discovered" facts he alleged, Cortez argued in
his petition below that they "were not known by [him]" and "could not have been discovered with due diligence before trial"; but other claims involved facts that were well known to Cortez before his trial commenced or became apparent during trial or sentencing. Critically, to state a colorable claim for relief based on newly discovered evidence, a defendant "must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court's attention." State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989). Because Cortez failed to meet this requirement, we cannot say the trial court abused its discretion in finding that his claims—raised nearly four years after he was sentenced—were precluded.
¶11 Nor did the trial court abuse its discretion in finding Cortez "failed to provide sufficient factual or legal reason to support a non-precluded claim pursuant to Rule 32.1(h), which requires "clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt." Although Cortez cited Rule 32.1(h) in an introductory paragraph, he presented no argument about its application to the facts of his case, in the context of the other evidence against him, but relied on conclusory assertions that "the jury would have changed [its] verdict" had additional facts been presented at trial. See Donald, 198 Ariz. 406, ¶ 21, 10 P.3d at 1201 (to warrant evidentiary hearing, Rule 32 claim "must consist of more than conclusory assertions").
¶12 For the foregoing reasons, although review is granted, relief is denied.