Opinion
No. 2 CA-CR 2014-0125-PR
07-02-2014
THE STATE OF ARIZONA, Respondent, v. WILLIAM WESTLEY DUNCAN, Petitioner.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel By Robert A. Walsh, Assistant Attorney General, Phoenix Counsel for Respondent William W. Duncan, 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NOT FOR PUBLICATION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 Mohave County
No. CR981153
The Honorable Rick A. Williams, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel
By Robert A. Walsh, Assistant Attorney General, Phoenix
Counsel for Respondent
William W. Duncan, 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 Following a jury trial in 2000, petitioner William Duncan was convicted of first-degree murder. The trial court sentenced him to a prison term of natural life without the possibility of release. We affirmed Duncan's conviction and sentence on his first appeal, State v. Duncan, No. 1 CA-CR 01-0113, ¶ 52 (memorandum decision filed Feb. 28, 2002), remanded for further post-conviction proceedings on his petition for review of the court's denial of his first petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., State v. Duncan, Nos. 1 CA-CR 04-0173-PRPC, 1 CA-CR 04-0178, ¶ 1 (consolidated) (memorandum decision filed Oct. 18, 2005), reaffirmed his sentence on appeal after resentencing, id., and denied review on the petition for review of his second petition for post-conviction relief. State v. Duncan, No. 1 CA-CR 08-0801-PRPC (order filed Dec. 8, 2009). Duncan now seeks review of the court's denial of his third petition for 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 trial court imposed this same sentence when it resentenced Duncan following its partial grant of post-conviction relief.
¶2 On review, Duncan argues that the trial court abused its discretion by denying his request for counsel and by denying his claims based on actual innocence and newly discovered evidence, ineffective assistance of counsel, prosecutorial misconduct, and a significant change in the law. He also maintains he was entitled to an evidentiary hearing, and he supports his claims on review by stating generally that "[a]ll developed facts relevant to all of these claims are contained in the [Rule 32 petition] and throughout the entire record in this case."
Duncan asserts in his petition for review that the trial court abused its discretion by denying his claims of ineffective assistance of "trial, appellate, and PCR counsel." We limit our review to whether trial counsel was ineffective because that is the only claim he raised in his petition below. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court does not consider issues raised for first time in petition for review).
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¶3 In its order dismissing Duncan's petition, the trial court identified and addressed the claims he had raised, and resolved them correctly in a manner permitting this court to review and determine the propriety of that order. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). The court correctly concluded the claims raised either were precluded pursuant to Rule 32.2 or were not colorable as exceptions to that rule. These are not surprising conclusions given that Duncan has previously sought post-conviction relief on two occasions. No purpose would be served by restating the court's ruling in its entirety here. See Whipple, 177 Ariz. at 274, 866 P.2d at 1360. Rather, we adopt the court's ruling. Additionally, to the extent Duncan asks us to appoint an attorney to represent him on review and allow him "to amend this [petition for review] if necessary, and instruct [him] on any areas he needs to expand," we decline to do so.
¶4 Because Duncan has not sustained his burden on review of establishing that the trial court abused its discretion in dismissing his petition for post-conviction relief, we grant the petition for review but deny relief.