Opinion
No. 2 CA-CR 2014-0246-PR
10-15-2014
THE STATE OF ARIZONA, Respondent, v. RALPH ROMEL ELEM, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Ralph Romel Elem, Winslow 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NOT FOR PUBLICATION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
No. CR20021758
The Honorable Jane L. Eikleberry, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Ralph Romel Elem, Winslow
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Following a jury trial, petitioner Ralph Elem was convicted of first-degree murder and sentenced in January 2003 to a prison term of natural life. This court affirmed his conviction and sentence on appeal. State v. Elem, No. 2 CA-CR 2003-0006, ¶ 9 (memorandum decision filed Jan. 15, 2004). Elem thereafter sought and was denied post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., and this court granted review, but denied relief on his subsequent petition for review. State v. Elem, No. 2 CA-CR 2005-0377-PR, ¶ 4 (memorandum decision filed Nov. 15, 2006). Elem again sought and was denied post-conviction relief three more times. He apparently did not petition for review of those rulings.
¶2 In June 2014, Elem filed a document entitled "Petition for Writ of Coram Nobis," in which he claimed he had received ineffective assistance of trial counsel. The trial court deemed the petition one for post-conviction relief, see Ariz. R. Crim. P. 32.3, and summarily denied relief, concluding the claim was precluded and untimely. "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).
Portions of Elem's petitions below could be read as asserting a claim of newly discovered evidence. Indeed the trial court rejected such a claim in its ruling. But Elem does not present an argument on the grounds of newly discovered evidence on review. Cf. Ariz. R. Crim. P. 32.9(c)(1); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."). Nor has Elem established that the evidence he presents—a statement from his son—could not have been obtained through due diligence at the time of trial. See Ariz. R. Crim. P. 32.1(e) (requiring defendant to exercise due diligence in securing facts). Indeed, his son's presence during the offense was known and discussed at trial.
¶3 On review, Elem contends the trial court abused its discretion in finding his claim precluded and untimely. As the trial court correctly noted however, Elem has raised claims of ineffective assistance of counsel in his previous Rule 32 proceedings. And "when 'ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.'" Swoopes, 216 Ariz. 390, ¶ 23, 166 P.3d at 952, quoting State v. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (2002). Likewise, a claim of ineffective assistance of counsel cannot be raised in an untimely proceeding such as this. Ariz. R. Crim. P. 32.4(a) (limiting claims that may be raised in an untimely proceeding to those made pursuant to Rule 32.1(d), (e), (f), (g), or (h)).
¶4 Elem attempts on review to argue counsel's ineffectiveness is newly discovered, and therefore exempt from preclusion and the timeliness rules. We observe, however, that a claim of recently discovered ineffective assistance of counsel is not cognizable under Rule 32.1(e). The plain language of that subsection does not encompass newly discovered material facts related to post-conviction claims—only those facts relevant to the defendant's "verdict or sentence." Ariz. R. Crim. P. 32.1(e); see State ex rel. Thomas v. Newell, 221 Ariz. 112, ¶ 7, 210 P.3d 1283, 1285 (App. 2009) (rule's plain language best indicator of meaning); cf. United States v. Hanoum, 33 F.3d 1128, 1130-31 (9th Cir. 1994) (claim of "newly discovered evidence" under Rule 33, Fed. R. Crim. P., "limited to where the newly discovered evidence relates to the elements of the crime charged"). The trial court therefore properly determined Elem's claim is precluded and untimely.
¶5 For these reasons, although we grant the petition for review, we deny relief.