Opinion
No. 2 CA-CR 2018-0081-PR
07-24-2018
THE STATE OF ARIZONA, Respondent, v. STANFORD LAMAR FERRELL, Petitioner.
Stanford L. Ferrell, Florence 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Cochise County
No. CR200700791
The Honorable Wallace R. Hoggatt, Judge
REVIEW GRANTED; RELIEF DENIED
Stanford L. Ferrell, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
ESPINOSA, Judge:
¶1 Stanford Ferrell seeks review of the trial court's ruling denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Ferrell has not shown such abuse here.
¶2 After a jury trial, Ferrell was convicted of two counts of child molestation and sentenced to consecutive, fifteen-year prison terms. In separate appeals, we affirmed his convictions and sentences, State v. Ferrell, No. 2 CA-CR 2008-0411 (Ariz. App. May 14, 2010) (mem. decision), and the trial court's denial of his motion to vacate the judgment, State v. Ferrell, No. 2 CA-CR 2009-0313-PR (Ariz. App. July 30, 2010) (mem. decision). He has since sought and been denied post-conviction relief on at least two occasions before this proceeding; this court either denying review or denying relief on review. State v. Ferrell, No. 2 CA-CR 2012-0432-PR (Ariz. App. Jan. 31, 2013) (mem. decision); State v. Ferrell, No. 2 CA-CR 2012-0090-PR (Ariz. App. June 29, 2012) (mem. decision).
¶3 In April 2017, Ferrell filed a notice of post-conviction relief asserting that May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), constituted a significant change in the law. See Ariz. R. Crim. P. 32.1(g). The trial court assigned counsel, who filed a notice stating she had reviewed the record and had not found "a tenable issue" to raise pursuant to Rule 32. Ferrell then filed a pro se petition, again raising a claim under Rule 32.1(g) based on May and additionally asserting trial counsel had been ineffective in failing to challenge the constitutionality of the child molestation statute or jury instructions. The court summarily denied relief and Ferrell's subsequent motion for reconsideration. This petition for review followed.
¶4 On review, Ferrell essentially repeats the claims made in his petition below. In May, a federal trial court determined that A.R.S. §§ 13-1407(E) and 13-1410 unconstitutionally shifted the burden of proof to the defendant because, by making the lack of sexual motivation an affirmative defense to child molestation, they required him to disprove an
element of the offense, namely "sexual intent." 245 F. Supp. 3d at 1154-56, 1164.
¶5 Ferrell is not entitled to relief. The court's conclusion in May is flatly contradicted by Arizona law and we are not bound by federal district court decisions. See State v. Holle, 240 Ariz. 300, ¶¶ 17-19, 40 (2016) (§§ 13-1407(E) and 13-1410 do not violate due process); State v. Smyers, 207 Ariz. 314, n.4 (2004) ("The courts of this state are bound by the decisions of [our supreme] court and do not have the authority to modify or disregard [its] rulings."); Arpaio v. Figueroa, 229 Ariz. 444, ¶ 11 (App. 2012) (decisions of federal district courts concerning state law are not binding on this court). Thus, Ferrell cannot prevail under Rule 32.1(g) and, to the extent his claim of ineffective assistance is separate from his claim under Rule 32.1(g), it cannot be raised in this untimely proceeding, see Ariz. R. Crim. P. 32.1(a), 32.4(a)(2)(A).
¶6 Although we grant review, relief is denied.