Opinion
No. 2 CA-CR 2014-0129-PR
07-02-2014
THE STATE OF ARIZONA, Respondent, v. LARRY DEAN DEYOUNG, Petitioner.
Larry Dean DeYoung, Buckeye 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR93018872
The Honorable Robert C. Brown, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Larry Dean DeYoung, Buckeye
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 After a jury trial, petitioner Larry DeYoung was convicted of five counts of aggravated assault, two counts of attempted first-degree murder, one count of attempted second-degree murder, three counts of endangerment, five counts of misconduct involving a weapon, and one count each of possession of drug paraphernalia and possession of dangerous drugs. In this court's most recent decision denying relief on review from DeYoung's February 2009 petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., we identified the prior postconviction proceedings filed in this case, which included DeYoung's direct appeal and multiple Rule 32 proceedings. State v. DeYoung, No. 2 CA-CR 2009-0216-PR (memorandum decision filed Feb. 26, 2010). This petition for review follows the trial court's order dated March 7, 2014, in which it again denied relief.
DeYoung states this is his tenth post-conviction proceeding in this case.
¶2 We will not disturb the trial court's ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). In his Rule 32 petition, DeYoung raised claims that he characterized as claims of actual innocence that purportedly fell within Rule 32.1(h). He argued that one of the juror's "pre-trial bias render[ed him] legally innocent." He also asserted he is "factually innocent" in light of the United States Supreme Court's decision in Georgia v. Randolph, 547 U.S. 103 (2006). The trial court noted that both issues were addressed in this court's memorandum decision in DeYoung's most recent post-conviction proceeding, adding, "They cannot be raised in this petition under the guise of actual innocence. The claims are precluded."
¶3 The trial court did not abuse its discretion by dismissing the petition summarily and DeYoung has not sustained his burden of establishing otherwise. DeYoung is correct that a claim of actual innocence is not subject to the timeliness requirements set forth in Rule 32.4(a) or the rule of preclusion set forth in Rule 32.2(a). But when the defendant raises such a claim in a successive post-conviction proceeding, he must "set forth the . . . reasons for not raising the claim in the previous petition or in a timely manner;" otherwise, the notice of post-conviction relief must be dismissed summarily. Ariz. R Crim. P. 32.2(b). Thus, even assuming arguendo these claims were cognizable under Rule 32.1(h), DeYoung did not satisfy this portion of the rule and failed to explain why he could not raise these claims in previous post-conviction proceedings, particularly his most recent one.
DeYoung did not initiate this proceeding by filing a notice of post-conviction relief, and instead only a petition, which the trial court addressed.
¶4 Moreover, as the trial court correctly noted, although DeYoung characterized them as claims of actual innocence, they were actually reiterations of claims raised in the 2009 post-conviction proceeding. In that proceeding he raised the claims as newly discovered evidence and a significant change in the law under Rule 32.1(e) and (g); in this proceeding, he simply bootstrapped them to Rule 32.1(h). The trial court therefore correctly dismissed the petition in this case because the claims upon which these purportedly new claims were based had been raised and rejected by the trial court and this court. Although DeYoung is correct that claims under Rule 32.1(h) are distinct from those under Rule 32.1(e) and (g), he did not raise colorable claims for relief under Rule 32.1(h). He did not establish "clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found [him] guilty of the underlying offense[s] beyond a reasonable doubt . . . ." Ariz. R. Crim. P. 32.1(h).
To the extent DeYoung claims a juror was guilty of misconduct for reasons other than those he had raised in the 2009 post-conviction proceeding, this claim of jury misconduct still is not cognizable as a claim of actual innocence under Rule 32.1(h).
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¶5 We grant the petition for review but for the reasons stated, we deny relief.